Luckily, and unluckily for some, the state of New York has devised a law that states exactly what happens to a person’s estate when they die without a will, or intestate as we lawyers like to call it. It is codified in EPTL § 4-1.1. It’s easy not to be familiar with this section of the law, because, let’s face it, we only die once.
It states, in part:
“Distribution shall then be as follows:
(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.”
Please note that there are six other distribution mandates when the above does not apply, but for now I just want to focus on this one. At first blush it seems to be ok. You probably would have left everything to your immediate family anyway right, so what’s the big deal?
Let’s specify some more:
You were a middle aged, middle/upper-income earning man with two children and a wife who you were lucky to have been living in beautiful Westchester, NY getting by working 10 hours a day to support your property taxes. You had your children later in your thirties because you had been so focused on work and then when 52 hits so does the big one- the big heart attack that is. You leave your wife with a twelve and fourteen year old, $450,000 in the bank and a mortgage to pay. And you never saw Paris.
So, by the letter of the law the first $50,000 goes to your wife. That’s seems reasonable. Then she takes half of the rest- $200,000. Ok, not bad.
And then what: your two children, minors at the time, inherit $200,00 equally? What? Why? Of course this raises more questions: why do I want my minor children inheriting money that my wife needs to raise them? You don’t. Then more practically: how does the Surrogate’s court actually give my minor children $100,000 each? The specifics can be summed up to one word: expensive. Oh and time consuming. So in a situation where your family needs money now and doesn’t want to spend any of it needlessly, they will be doing the opposite.
A Last Will and Testament in New York is, in my mind, an effective insurance policy that not only can direct your wishes and desires, but it can end up saving your family time and money when life is at its hardest.
