But, what many people don’t realize is that in the absence of a valid Will, New York State has its own plan for your estate - and it may not be what you’d think would happen with what you own. (And, remember even personal property like pictures, jewelry, furniture, cars, etc. are important to plan for! And, of course, planning for pets is a must! As well, you could have assets that come in after your death - like an income tax refund, or an inheritance from a relative or a personal injury action that survives your passing, or unused credit card rewards, or lottery winnings or . . . well, you get the picture . . . you should always have an up to date Will in place).
We thought we’d take a thoughtful glimpse at what actually happens if someone dies without a Will and has any asset in his/her name alone or an asset that may come in after death, and a few key points to know. From “opening” the estate to distributing the estate assets, whether you have a Will in place (that will pass muster with its validity) or not means a world of difference for your loved ones. Having this as a basic plan - no matter what - is critical.
When There’s No Will: The Basics of Intestacy
In New York, if you die without a valid Will, the law considers your estate "intestate." That means instead of you deciding who gets what, the state follows a set of rules outlined in the
Estates, Powers and Trusts Law (EPTL) Section 4-1.1 to determine precisely how your assets will be divided. Here’s a simplified breakdown of how New York distributes assets when you don’t have a Will:
- If you have a spouse and no children: Your spouse gets everything.
- If you have children but no spouse: Your children inherit equally.
- If you have a spouse and children: Your spouse gets the first $50,000 and half of the remainder; your children share the other half (with certain assets being considered separate from the estate through the “family exemption”).
- No spouse or kids? Your estate first goes to your parents, then siblings, then more distant relatives if those individuals aren’t available.
- No one beyond first cousins once removed? The state keeps it all. (I know, right?!)
This structure might seem straightforward, but there’s a lot more complexity underneath. There are various ways that starting an estate without a Will can become more complex. Here are a few examples: children who have predeceased you leaving their children (ie: your grandchildren), a child born from a father from a non-marital relationship, heirs who must be identified but are unknown, heirs whose whereabouts are unknown (think estranged relatives), unknown circumstances regarding a surviving spouse (think potential divorce but murky facts), unknown facts about an adoption, potential half-siblings, minor children, incapacitated individuals, incarcerated individuals, individuals who have the same right to act as the fiduciary but do not agree on who should act, a need for a kinship hearing to determine if all necessary heirs are properly a part of the initial estate proceeding and a guardian ad litem or multiple guardian ad litems who need to be appointed by Surrogate’s Court to act on behalf of those who cannot act for themselves (ie: minor children, incapacitated individuals, unknowns or whereabouts unknown, etc.) and so on. The idea being that there are many scenarios where just to open an estate become much more complex than may be anticipated. It’s important to remember that at the time of your passing, the facts and circumstances could be drastically different than they are currently. The people and their circumstances who may need to be involved in just opening your estate could be different than they are now. Getting a handle on this early stage can be much more difficult than people imagine. This is a topic for a whole separate blog post - but the idea is that Surrogate’s Court must have “jurisdiction” over necessary parties before next steps. Necessary parties are just that - they are necessary to the proceeding - whether it’s a probate proceeding (there is a Will) or an administration proceeding (there is no Will). This, alone, has caused many delays and difficulties. But, having a Will in place that is anticipated to be found valid by Surrogate’s Court (ie: no lack of capacity, forgery, undue influence, etc.) helps with this initial phase in Surrogate’s Court. “Opening” an estate in Surrogate’s Court, without a Will, means more potential issues (and more time, energy and money wasted).
So, Who Takes Charge? (Hint: It Might Not Be Who You Expect)
Without a nominated executor in a Will who then petitions Surrogate’s Court to act, someone needs to proceed to act on behalf of the estate. This means that without a Will, someone needs to petition Surrogate’s Court to act on behalf of the estate without being named in a Will which, of course, can lead to more issues. Without a Will, the person that will eventually act as the fiduciary of the estate is called the “Administrator”. This potential administrator starts with a petition in the Surrogate’s Court in the decedent’s domicile. For example, if you’re in the Williamsville or Buffalo area, this typically means working with the Erie County Surrogate’s Court.
When this happens, the Court follows a statutory pecking order of priority to allow a person to act as the Administrator. That pecking order is as follows:
- Surviving spouse
- Children
- Grandchildren
- Parents
- Siblings
But, even though there is this pecking order, things can become more difficult - whether it’s opening up the estate or closing the estate due to a variety of circumstances. As you can imagine, family dynamics aren’t always simple. What if two siblings disagree? What if there are minor children? What if there is an estranged surviving spouse? What if there are half-siblings or “adopted out” children? What if no one steps up? Sometimes, in complex situations, the court may even appoint the Public Administrator - a stranger to your family. According to
Nolo, contested administration proceedings can delay estates for months or years, and are one of the most common causes of prolonged probate.
What About Non-Family Members?
Here’s the thing: If you aren’t legally married or your “children” aren’t legally adopted, they may be left out entirely, and not even have a right to act as the fiduciary of your estate. Even someone you’ve shared your life with for decades - if not legally your spouse - won’t have the ability to simply act as the fiduciary or inherit a thing regarding your assets that are passing through this process - of course, unless they are named appropriately in a valid Will. That best friend who helped raise your kids? Left out. The niece you meant to help through college? Also left out. Estate planning isn’t just for the wealthy - it’s for anyone who wants to be intentional about benefiting loved ones (from personal property to their life’s work).
Special Considerations for Real Estate and Blended Families
Real estate can get especially tricky when it comes to not having a Will in place. A home in Clarence or Buffalo titled solely in your name becomes part of the probate estate. If your family doesn’t agree on what to do with the property, it could be tied up in court - accumulating real estate taxes, unpaid mortgage payments with interest and penalties (and a potential foreclosure action), accrued utility bills (and potential shut-off of utilities leading to more problems), homeowner’s insurance issues, legal fees and more headaches - before anyone sees a dime.
If you’re part of a blended family, things can get even more complicated. Let’s say you want your current spouse to stay in the home, but ultimately pass it on to your children from a prior marriage. Without a Trust or Will, those ideas are just that - ideas! You need to make a plan that will mean something when it counts.
The Risk of Unclaimed or Lost Assets
If your estate enters probate without good documentation, it’s possible that some of your assets - like old bank accounts, forgotten pensions, or digital assets - are never identified and therefore claimed. According to the
New York State Comptroller’s Office, the state holds over $18 billion in unclaimed funds (Yes, that’s Billion with a B!) A good estate plan helps your loved ones claim what’s rightfully theirs and avoids adding your assets to that number.
Probate Isn’t Always the Enemy - But It is a Process
Probate isn’t inherently bad. In fact, many estates go through probate every day without major issues. But when there’s no Will, no direction, and no planning, the process gets harder. As probate attorneys we see all kinds of scenarios: adult children fighting over their mom’s car, multiple heirs disagreeing on whether to sell or rent the family home, or months of delay while the court tries to track down a long-lost sibling in another state.
With a simple estate plan, you greatly help your loved ones. Even just nominating an appropriate Executor, outlining your wishes, and updating beneficiary designations on your accounts can provide clarity and help prevent disputes. Waiting until there is an emergency or creating a plan in a rushed process or when there are concerns about your abilities and capacity are ways problems creep in and cause bigger problems! You do not want to wait for problems - be proactive.
What You Can Do Right Now
If you’re reading this and realizing that it’s time to stop putting off the Will-writing on your To-Do list, we’re here to walk you through making all the important plans. At Ruth P. George Law PLLC, we work with families throughout Western New York who want to make things a little easier on their loved ones. If you’re hoping to start by doing a few things on your own, here are a few small steps you can take today:
- Check the beneficiary designations on your retirement accounts, life insurance, and bank accounts.
- Make a list of your assets, debts, accounts, and important documents.
- Start thinking about who you would want to be responsible for managing your affairs if you couldn’t.
- When you’re ready,
schedule a consultation to talk about your goals.
No Matter How Insignificant You Think Your Estate is, Don’t Leave Where it Goes up to the State
Dying without a Will means leaving one of life’s most personal decisions up to state law. While New York’s intestacy laws provide a safety net, they lack the heart, insight, and individuality that families deserve, including yours.
For more information about creating a will or navigating probate in New York, make sure to check out our
Estate Planning or
Probate & Estate Administration pages. Or,
contact us directly to schedule a conversation.
