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Thursday, August 30, 2018

Dying Without a Will in New York or New Jersey

Q: What happens if I die without a will?

New York and New Jersey estate planning attorneys are not only experts at helping clients put their legal affairs in order, but the most experienced ones are also skilled in the relevant tax laws that impact those estate planning decisions.

Unfortunately, the same can’t generally be said for most financial planners having reciprocal legal knowledge. So, when people limit themselves to doing only financial planning, they do themselves a great disservice and can cost themselves and their loved ones unnecessary money and grief down the line with no estate plan.

When you die without a will, you are considered to have died “intestate”. With no legal document establishing who you want to receive your assets after you die, the court has no choice but to distribute the property that would have passed through your will (if you had one) in accordance with your state’s intestacy statutes—laws that differ from state to state.

More often than not, the intestacy statute’s distribution schedule will not match what you would have chosen if you had taken the time to have a will prepared by an attorney. And there is nothing anyone can do about it at that point.

Generally, in New York, if you have both a spouse and children, the intestacy statute provides for your spouse and children to inherit certain percentages of your estate. If you have just a spouse or just children, they inherit all. If you have neither, your parents inherit, and if no parents, then your siblings may inherit.

New Jersey’s intestacy statute is even more complicated as, depending on the deceased person’s marital status at the time of death, intestacy distribution percentages are carved out by taking children from a current marriage as well as those from each partner’s prior relationships into account, along with the value of the estate. People without children or other descendants who die intestate in New Jersey leaving a spouse and parents may be surprised to learn that intestate laws may distribute a portion of their estate to their parents, not just their surviving spouse.

It should be noted that any assets you own that are jointly-held with someone else and/or that pass automatically to someone else upon your death or are held in a living trust, are not probate assets and will not be part of your intestate estate. Those assets will pass outside of the public probate court process or the intestacy process to those you intended.

If you have done financial planning, complete the process and secure the future of yourself and your loved ones by seeing an estate planning attorney. Medicaid planning can safeguard your life’s savings in the event you need long-term nursing home care. A will is the only way to legally choose and control who will raise your minor children if you die before they are adults—without one, the court decides. Additional estate planning documents can plan for incapacity instead of death and allow you to appoint agents to handle your financial and medical decisions if you become unable to do so yourself. Trusts have multiple time and money saving benefits in estate planning. These are just a few of the examples of why people need estate planning.

If you need assistance with an initial estate plan or would like to modify an existing one, the attorneys at Merlino & Gonzalez can help you. Contact us today to schedule a consultation.

With offices in Staten Island, New York and East Brunswick, New Jersey, we represent clients throughout New York and New Jersey in estate planning and real estate matters.


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