Dying Intestate


Question: My mother just passed away. She did not have a Will, but I know that she wanted me to inherit everything as I am her only child. She was estranged from her husband, who is not my father. I am afraid that without a Will her assets will be taken by the State. What is going to happen?

Answer: The loss of a loved one is already a difficult time in one’s life. A time which can become even further complicated when the decedent passes away without any planning in place; namely, a Last Will and Testament.

Contrary to popular belief, if an individual dies in New York State without a Will, it does not mean that the state has any more of a claim on their property than if they died with a Will. Rather, the individual’s estate will pass under the “laws of intestacy.”

To the extent that the decedent has named beneficiaries on his or her accounts, or owns property jointly with another individual with rights of survivorship, those assets pass by “operation of law,” regardless of whether or not the decedent had a Will. So if your mother named you as a beneficiary or if you were a joint owner on any of her accounts, those will pass to you just as she would have wished. However, assets that were left in her sole name without a designated beneficiary will be distributed to her heirs according to our intestacy statute.

The laws of intestacy set default distribution guidelines for someone who passes away without a Will. In your mother’s case, she was married individual with one child. Our statute provides that the surviving spouse inherits the first $50,000.00, plus half of the remaining probate estate and you, as her only child, would inherit the balance of her probate estate. This distribution only applies to assets in your mother’s sole name with no beneficiary designated.

What’s more, surviving spouses are entitled to a right of election. This means that even if your mother designated you as the beneficiary of all of her assets, your mother’s estranged husband is still entitled to one-third the value of all her assets when she passed away, excluding the value of life insurance. There are strict time limits in which her husband must assert his claim if he intends to collect. Speak to an attorney who specializes in trusts and estates to discuss what specific options are available to you to settle your mother’s estate.

Burner Law Group, P.C.

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