Dying without a will (intestate) can leave your wishes unstated and unheeded, and your beneficiaries distressed while they are grieving your loss. But you may already know this if you are now facing the challenges of intestate succession after a loved one’s death. If so, if you are a resident of Staten Island, the other four boroughs of New York City, and nearby counties of New Jersey, Merlino & Gonzalez is the place to come. Our will and trust attorneys have decades of experience in this precise area of the law.
In spite of the fact that dying intestate can create serious problems for loved ones left behind, AARP research shows that 60 percent of Americans do not have wills. If you die without a will
in New York or New Jersey, your assets will go to your “closest” blood relatives under state intestate succession laws, regardless of whether you ever met these relatives or even knew of their existence.
If there are no blood relatives alive, the state will take your assets in a process called (perhaps appropriately) “encheatment.” Though this is a rare occurrence, especially now that genealogical data is readily available, everyone wants to avoid this eventuality. Even the state is reluctant to take your assets since it doesn’t want to be confronted later by the appearance of a distant relative.
We all know that life is unpredictable, so no matter what your age, it is wise to have one of our well-respected attorneys not only help you with the issue of intestate succession as it relates to another’s death but also assist you in getting your own affairs in order.
Some Assets Are Exempt From Intestate Succession Laws
Assets that do not pass through probate are not impacted by intestate succession laws. These assets may include:
- Property transferred to a living trust
- Life insurance policies with designated beneficiaries
- Retirement funds with a named beneficiary, e.g IRAs, 401(k)s
- Stocks or securities in a transfer-on-death account
- Real estate with a transfer on death deed
- Vehicles with a transfer on death registration
- Payable-on-death bank accounts
- Property owned in joint tenancy
Because these assets will pass to the surviving co-owner or designated beneficiary whether or not you have a will, they are outside of the rules of intestate succession unless the named beneficiaries have predeceased you.
The Order of Intestate Succession in New York and New Jersey
The laws of intestate succession are basically the same in both states.
According to the rules of intestate succession:
- If you die without a will and you have a spouse but no descendants,
your spouse inherits everything.
- If you die with children but no spouse, your children will inherit everything
- If you die with a spouse and descendants, your spouse inherits the first $50,000 of your intestate property plus one-half of the balance; the descendants get the remainder
- If you die with parents but no spouse or descendants, your parents inherit everything
- If you die with siblings but no spouse, descendants, or parents, your siblings inherit everything
If a child has died before a parent but that child had their own children, those grandchildren of the deceased take the deceased child’s place in the line of succession.
Details About Intestate Inheritance by Children in New York and New Jersey
The part of your probated estate each of your children inherits if you die without a will depends on how many children you have as well as whether or not you are married. Other significant facts about the way children inherit under intestate succession are listed below:
- Adopted children receive the same amount as children born to you.
- Foster children and stepchildren, unless you have legally adopted them, will not automatically receive a share of your probated assets.
- Children legally adopted by another family are not legally entitled to a share of your estate, though your biological children adopted by your spouse can inherit.
- Posthumous children, i.e. children conceived but not born before the parent’s death, can still inherit.
- Children born outside of marriage will inherit from the father as long as  both parents acknowledged paternity and filed it with the birth certificate  the father acknowledged paternity openly  the father signed a document acknowledging paternity or  a court has determined paternity.
- Grandchildren, as noted, will receive a share only if the grandchild’s parent, the child of the deceased, is no longer alive.
- Children born through artificial insemination after the father’s death are considered legal heirs and will receive a share of his estate only if the father has consented to this use of his genetic material and this consent took place within seven years of his death.
Notice how modern technology’s involvement in the birth process has resulted in relatively recent changes to intestate succession rules.
Situations Involving Intestate Succession Require Experienced Attorneys
As you can clearly see from the content above, intestate succession can be extremely complicated, especially in these days of blended families and medically assisted conceptions. (And we haven’t even gotten to esoteric questions involving half-relatives, posthumous family members who were conceived during your lifetime but born after your death, and joint tenancies in which one owner has murdered the other. Even in more common situations, our attorneys will provide you with the reassurance of dealing with a consummate professional, well-informed about intestate succession.
Contact Our Accomplished Intestate Succession Attorneys Today
If your family is faced with the difficulties inherent in the death of a loved one who died without a will, you need the services of one of our intestate succession attorneys. We will lead you through the tangles of state law into the clarity of inheritance. If this daunting experience persuades you to make a will and plan your estate, all the better. Contact us now — we are happy to help.
Merlino & Gonzalez helps clients with intestate succession and other estate planning matters throughout Staten Island, the other four boroughs of New York City, & nearby counties of New Jersey.