If You Don't Have a Will in New York

After Prince died without a will in 2016, Gallup Poll conducted a survey and found that 55% of respondents didn’t have wills, either.

Patricia C. Marcin, an estate planning attorney at law firm Farrell Fritz, guesses some don’t put an estate plan together because they don’t want to even have the discussion, while others may be worried about the money it costs to put their ducks in a row. Mostly, though, she assumes people simply don’t realize the ramifications for loved ones.

“Not having a will is actually surprisingly common among people that have significant wealth, which is rather shocking,” she says. “People generally think that their spouses get their estates when they die.”

Per New York law, it’s not quite that simple.

According to Mary S. Croly, an estate planning attorney at McLaughlin & Stern, the estate of someone who dies without a will is controlled by intestacy statute—though the statute only applies to assets that are in the decedent’s name alone. That means that if a set of parents name their assets jointly, when the first spouse dies, the control automatically goes to the other spouse.

But when the surviving spouse dies? “The distribution could be completely different from how the survivor wanted the assets to be distributed,” says Croly. “The intestacy laws will control how the assets are distributed. … It’s a pecking order, dependent upon who, for example, mom is survived by. Everybody’s is different.”

Under New York law, if there is a surviving spouse and children, the spouse is generally named the administrator and given the first $50,000. Then the estate is split 50-50 between the spouse and the children. If there isn’t a surviving spouse, one of the children will usually be named the administrator and each will get equal shares of the estate. However, things can get sticky if the children are minors, if there’s a stepparent involved, or if the siblings are in conflict.

“The best-case scenario is that all the kids get along, they agree to one of the kids being the administrator, and everything is distributed to the kids equally,” says Marcin. “If you have siblings that don’t get along, they’re not going to sign waivers and consents, which means that then the court has to issue a citation, and the sibling that doesn’t get along can come to court and object to their other sibling being appointed administrator.”

Adds Croly: “Say mom dies and she has four children, one of which is estranged. She wanted to disinherit [that child], but she obviously can’t do that. Or, if mom has four children and two of them are sufficiently set in life, and then two of them really need her financial help, she won’t be able to do that, either.”

Marcin adds that if your parent has died without a will, you can call the court and figure out the proceedings on your own, but “there are many tax and non-tax issues that go into the administration of an estate. If it’s super-plain, vanilla and small, it may not matter. But once you’re getting to a million, two million dollars, there are usually ramifications of everything you do.”

She notes that, in “non-COVID times,” if a parent dies without a will, the children, with the help of a lawyer, could resolve a simple estate in potentially six months for under $10,000. Of course, if there’s family strife or the estate is complex, it could be a years-long process.

Even if someone claims their will should simply follow New York’s intestacy statute—which Croly has seen over her 30-year career—it’s still better to have a will than not.

“You can have a simple will; it doesn’t have to be 40 pages long,” she says.

For more information on probate court and the probate process, state intestacy laws, intestate succession laws, beneficiary designations, last will and testaments, estate taxes, estate planning documents, and revocable living trusts, please see our estate planning overview, as well as our wills law overview.