The Law Office of Inna Fershteyn has over 28 years of experience writing wills for New York clients. Inna Fershteyn, Esq. will draft and help execute your will with two witnesses present in a timely and efficient manner. Most importantly, he will go to extreme lengths to address your emotional needs and concerns. No one wants to think about death, and writing your will may invite unwanted feelings of discomfort. Inna will answer all of your questions with compassion, while presenting the facts and constructing a comprehensive estate plan that best fits your situation.
Dying Without a Will in New York
If you die without a will in New York:
- Your assets may not be allocated to the individuals or charities you had in mind. Many states follow the order of spouse, children, grandchildren, parents, and siblings — respectively in that order. Although this is the common order of inheritance by the court, this order might not reflect your family dynamics and relationships.
- Distribution of assets will not be as you please. In some circumstances, you may want to leave your children unequal sums of money due to strained relationships that may have occurred during your lifetime. However, without a will, your estate is usually split evenly between your children if your spouse has passed as well. With a will, you have the chance to split your assets unevenly between beneficiaries.
- Guardianship of children may go to someone who is not an appropriate candidate. If you have children who are minors when you pass, they may be assigned guardians who are unfitting candidates for the role. Oftentimes, family members will volunteer to become guardians for your children, but this cannot be fully guaranteed.
- Different marital statuses can have various outcomes. If you are a single New York resident, your estate will first be given to your children; but if there are no living children, your assets will be transferred to any living parent you may have. Otherwise, they will be split between your siblings. If all of these family members are deceased, your assets will be split between remaining family members from both sides of your parents’ family. If you are a married New York resident, the surviving spouse inherits your entire estate. If there is no surviving spouse, your children inherit the estate.
By Writing a Last Will and Testament in New York, You Will:
- Avoid possible arguments between family members in deciding who will inherit your assets
- Avoid monstrous probate fees for your loved ones
- Avoid a probate process that can take several months
- Have control over who you appoint as will executors
What Happens if You Die Without a Will in the State of New York?
If we haven’t made it clear enough yet, dying without a will in New York is the worst way to approach estate planning. By writing a will, you ensure that your estate, no matter how small, will be inherited by the rightful beneficiaries. You want to have control over which of your loved ones inherits the assets you worked so hard for. You also want to prevent any future messy disputes between family members. Since you have already decided who will inherit which assets before passing, you guarantee that everyone will receive exactly what you intended for them to have. Additionally, you guarantee control over who you appoint as a will executor. This way, you have the opportunity to pick a trusted and responsible individual to carry out the wishes you set forth in your will. Assets that can be passed down to your beneficiaries include investments, cars, houses, charity donations, and bank accounts.
Believe it or not, many people still die without a will. Anything can happen: a loved one who thought he had many more years to live before writing a will unexpectedly dies of a heart attack, a will is written incorrectly, or a will is even lost. At the height of the 2020 pandemic, the Law Office of Inna Fershteyn saw an astronomical increase in clients who rushed to write their will. Unfortunately, many loved ones were dying in the hospital without a written will.
Questions to Consider When Appointing a Will Executor
- Is this a trustworthy individual?
- Is this individual responsible?
- Is this individual good with finances?
- Does this individual have the time to execute your will?
- Is this individual mentally stable?
Dying Intestate Without a Will in New York
If an individual dies without a will, New York State deems this person to “have died intestate.” The local probate court then decides who will inherit the assets left behind. It is important to note that every state’s estate laws are different. Here are some possible outcomes determining which beneficiaries an individual’s assets may be allocated to:
| Dying without a will in New York | Who inherits under EPTL § 4-1.1 |
|---|---|
| Only spouse left | Inherits the entire probate estate |
| A spouse and children are left | Spouse inherits the first $50,000 and the remaining balance is divided in half between the spouse and children |
| Only children are left and no spouse | Children inherit all assets |
| Parents with no living spouse or children | Parents inherit all assets |
| Siblings with no living spouse, children, or parents | Siblings inherit all assets |
| Grandchildren with no living children, parents, spouse, or siblings | Grandchildren inherit the entire probate estate |
| Child 2 is left, but child 1 passed away leaving children | Child 1’s children split the first half of the balance equally and the remaining 50% is inherited by Child 2 |
These lines of inheritance also apply to the rules of administration. In general, those closest to the deceased individual file for probate at a Surrogate’s Court located closest to the individual’s former place of residence.
Examples of NY Surrogate’s Court Administration Cases
July 6, 2023
A client lived in a co-op apartment with her brother, who passed away. Her brother unfortunately passed away without a written will that voiced his wishes to transfer his 50% share of the apartment. To obtain full ownership of the apartment, we helped the client access a certificate of right to survivorship and file for will administration. We listened to the client’s needs and addressed them immediately, knowing that the will administration process may take several months.
May 27, 2023
A family came to the Law Office of Inna Fershteyn during an extremely difficult time. A mother and father lived with their adult son in a co-op apartment when he passed away. The son had sole ownership of the apartment but passed away without a written will. To transfer ownership of the apartment to his surviving parents, we helped them file letters of administration. Additionally, their son held a large sum of money in his bank account but did not name any beneficiaries. We helped name his parents the appropriate beneficiaries on the account and let them preside over it. During this process, we sympathized with the family’s grief and addressed the situation in a timely manner.
April 17, 2021
A female LGBTQ+ couple originally from Brazil was never legally married and had a son via a surrogate. As a doctor, the child’s biological mother reported to work during the height of the pandemic and, after having an extreme case of COVID-19, died without a written will appointing a legal guardian. The one-year-old’s surrogate donor — in this case, the father — flew in from Brazil to claim custody of the child and raise him in Brazil. A legal battle began: while the biological mother’s partner raised the child as her own, she technically did not have any blood or legal relation to him. Both parties held Brazilian passports. However, the child was born in New York and his mother died in New York, so the case had to be settled in a New York court. The Law Office of Inna Fershteyn did everything in its power to represent the biological mother’s partner.
July 10, 2020
During the COVID-19 pandemic, a client who was dying from cancer in the hospital asked the Law Office of Inna Fershteyn to create a will for him during his last days. The process usually takes a week, and the pandemic presented mailing obstacles that significantly slowed the usual process. However, the attorney expedited the process and created a will in three days. The client passed away a few days later with the peace of mind that his assets were successfully taken care of and ready for his loved ones to inherit.
Frequently Asked Questions
Can my children inherit if they are minors?
Yes. Minor children do have the capacity to inherit property under New York’s intestate succession laws. But since minors are often unable to manage and take care of the property on their own, the court may need to appoint a guardian or some other trustee for the property. In doing so, the court ensures that the property is looked after by an adult before the child turns eighteen.
Do my stepchildren inherit automatically if I die without a will?
No. Stepchildren do not have the right to inherit from a decedent under New York law if they have not been adopted by the deceased person. In the absence of an adoption by the decedent, the stepchildren are not considered legal heirs and cannot inherit anything in the event the deceased passes away without having made a will. For people who want to leave property to stepchildren, a proper will or trust is necessary for inheritance.
Does life insurance go through intestacy?
Not necessarily. The life insurance proceeds are usually paid out to the person who is named as the beneficiary in the policy and are not deemed a part of the probate estate. This means that the proceeds are unlikely to be subjected to the intestacy process and are not distributed in accordance with the laws on intestacy in New York.
Can someone challenge who inherits an intestate estate?
Yes, family disputes related to relationships, heirship, or management of the estate can occur. These disputes and challenges are to be resolved by the Surrogate’s Court under the laws of New York.
How long does estate administration take?
Every estate is different, and there may be reasons why an estate takes longer to administer than others. The length of time can be affected by elements like family disputes, claims against the estate by creditors, the estate’s size, the difficulty of managing the estate, and the amount of time it takes to locate and distribute the assets. Estate administration can range from a couple of months to a couple of years.
Can I avoid intestacy?
Yes, setting up and executing a will is the most effective way to avoid intestacy and ensure that your assets are distributed according to your intentions.
What happens if I have no legal family and die without a will?
If you die without a will and have no identifiable legal heirs, your estate will be distributed according to state intestacy laws. If no eligible relatives can be found after a reasonable search, the estate may ultimately pass to the state through a legal process known as escheat.
Who manages my estate if I die without a will?
Without a will, you do not have the opportunity to name an executor for your estate. Instead, the court will appoint an administrator to oversee the administration of your estate. This role is typically given to a surviving spouse, adult children, or another close relative. However, without a will, you do not have control over who is ultimately appointed.
Speak With a New York Estate Planning Attorney
A valid will keeps these decisions in your hands. The Law Office of Inna Fershteyn and Associates, P.C. has helped New York families prepare wills and avoid intestacy since 1998.
Call: (718) 333-2394 • Office: 1517 Voorhies Avenue, 4th Floor, Brooklyn, NY 11235
Inna is fluent in English, Russian, and Ukrainian — Наша команда говорит по-русски и по-украински.