As many as six out of every ten Americans have no estate planning documents in place in the event of their death. This shocking statistic, based on a Gallup poll of adults ages 18 and up, poses an excellent question, what will happen if you die without a will?

Dying without a will or other estate plan is called dying intestate. The law varies from state to state but in general requires a judge to decide to whom the estate’s assets will be distributed.

New York’s intestate laws establish that assets will go to the closest surviving relatives of the deceased person. However, this is not often as straightforward as it sounds.

Assets Subject to Intestate Laws

Anything that would be included in a will and pass through probate would be subject to intestate succession laws. These are usually assets and property owned in the decedent’s name alone. Things such as accounts with named beneficiaries or co-owners would not be included in this process. Some examples of assets not subject to intestate succession laws:

• Life insurance
• Property held in a living trust
• Retirement accounts such as a 401(k) or IRA
• Property held in joint tenancy or tenancy by the entirety with others
• Payable-on-death bank accounts
• Securities in a transfer-on-death account

Other assets that are subject to intestacy laws will be held by the courts until the appropriate closest family members and heirs, also known as distributees, are determined.

Who Will Inherit?

The distributees are determined by the level of their relationship to the deceased. If the person was married with no children, their spouse will inherit everything. If the person is not married but has children, the children will inherit everything and split equally. When there is a spouse and children, the spouse will receive the first $50,000 and half of the balance while the children will split the remaining balance equally. If there is no spouse and no children who outlive the decedent, the parents, grandchildren or siblings could inherit the estate.

Who does and does not qualify as a “child” can be less straightforward than it seems. Legally adopted children will inherit just as biological children do. Stepchildren and foster children, however, will not inherit at all unless they were legally adopted. Children born out of wedlock or born after the individual’s death (even through artificial insemination, if done with consent within seven years of the death) will inherit under intestacy laws if paternity has been established.

If the deceased person has no heirs under the law, the state of New York will receive the estate. Full text of New York’s intestate succession law can be found HERE.

The best protection against subjecting family members to the stress of a drawn-out probate process is to have an estate plan in place. Contact the New York estate planning attorneys at Littman Krooks for more information. Learn more about Littman Krooks at https://www.littmankrooks.com/.