What Happens if I Pass Away without a Will?

While it might not be the most important things on peoples’ minds, the truth is that all of us need a last will and testament, regardless of whether or not we think our estates are large enough to need one. Without a last will and testament or some type of trust, the assets of our estate will enter into what is known as intestacy and be distributed according to a line of succession dictated by the law, rather than what our final wishes may have been.


In New York, any assets not placed into a trust will need to pass through probate court (known as Surrogate’s Court in the state). Even in cases where the deceased created a will and specifically dictated which assets go to which heirs, the court must still hear the matter to ensure the deceased’s wishes are carried out.


However, certain assets will not pass through probate with or without a will. These types of assets include homes that are jointly owned by spouses, life insurance payouts, retirement accounts with named beneficiaries, and bank accounts set up as payable-on-death. Without a will, any other assets like personal property and savings accounts will be passed along according to New York’s intestacy laws.


Typically, the estate of an individual with a spouse and no children will see the assets go directly to the spouse. If the decedent had children but no spouse, the estate goes to the children. In situations where the deceased leaves behind both a spouse and children, the first $50,000 of the estate and one-half the balance will go to the spouse with the remainder going to the surviving children.


For those who pass away without spouses or children, their estates will pass on to any surviving parents. Should the decedent have no surviving spouse, children, or parents, then the estate would go to any surviving siblings. Other surviving relatives eligible to receive assets from an intestate estate include half-siblings, adopted children, children conceived posthumously, and even foreign relatives.


The only instance in which the state of New York can outright seize an intestate estate is in the very limited situation where an individual passes away without any living relative. Although most of us will not find ourselves in the last situation, it is nonetheless important that we create some type of will to help move along the probate process upon our passing away and ensure that our last wishes are carried out.

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