The majority of people would be surprised to discover a particular fact about estate planning law: every person has an estate plan of some kind, even if they never set foot in a probate lawyer’s office. Each state has laws in place in order to determine what happens when a person dies or becomes incapacitated without any legal documentation of their wishes. With that in mind, each person must determine for themselves whether they need or want an estate plan that is better than what the state provides.
When someone passes away without a Last Will and Testament in place, they are said to have died intestate, meaning their property will be distributed according to the law. In New York, all property passes to the person’s spouse if there are no children, and to the children if there is no spouse. If both are present, the spouse will inherit the first $50,000 and half the balance, with the remainder going to the children. Surviving parents and/or siblings receive the property in the case of unmarried persons. In cases where the deceased person has no surviving family members, all their property passes to the state of New York.
If no estate planning documents have been drafted, the probate court will determine who should be in charge of the decedent’s affairs based on family relationships. Roles which the court may determine include: guardian or conservator if the person is still alive but incapacitated, guardian of children under 18 after a parent’s death or personal representative after death.
The probate court ensures that assets are distributed and guardians and other necessary positions are appointed according to its judgments, and public records of the court’s decisions will be made available. After a time period of about a year, the court appointed executor of the estate can request that the probate court formally end the estate and release the person from their responsibility to the beneficiaries.
When is this estate plan not right for you and your family?
There are many situations in which you may not want to go along with the state’s default estate plan, such as:
- If you want to donate part of your assets to charity.
- If you want certain friends and relatives to receive certain assets.
- If you would like a specific person to be in charge of your estate.
- If you have a large estate and want to reduce estate tax owed to the state of New York.
- If you would like privacy surrounding your estate’s asset distribution.
- If you do not want to involve probate courts.
- If one of your family members has special needs or is a minor and you would like to name a guardian.
If any of these apply, you should have a customized estate plan in place for the future security of you and your family. If you are interested in creating an estate plan that fits your unique needs, please contact Queens probate lawyer Richard Cary Spivack for a consultation.