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What happens when someone dies without a will?

Losing a loved one is never easy. Even when you might know the death is imminent, you may not be prepared for the true loss of their love, companionship and support in your life. When your time comes, you want to make the transition as easy as possible for those you leave behind, including the distribution of your estate.

If a loved one dies without a will, the courts must step in and determine how his or her property will be distributed. Learn what you can expect if your loved one dies and has not prepared a will.

What if someone dies without a will?

If a loved one dies and has not left a will, the person is said to have "died intestate" and all property is distributed according to a state formula. Here is what happens in a typical intestate asset dispersal in New York:

  • If your spouse dies and you have no children, you inherit all assets.
  • If your spouse dies and you have children, you inherit part of the assets and your children inherit the other portion.
  • If you are an adult child and an unmarried or widowed parent dies, you inherit everything. If there are multiple children, you evenly split all assets with your siblings.
  • If someone dies without any biological heirs, the property goes to the State.
  • If minor children are left orphaned after a parent's death and there is no Will appointing a caregiver, the court will appoint a personal guardian to assume the parental role. If you would like a say in who cares for your children in the event of your death, it's imperative to make a will.

State guidelines also address situations of adoption, fostering, stepchildren, grandchildren, and separated or divorcing spouses.

The effects of intestate death on surviving family members

In any of these situations, the surviving families members must take legal action to receive their inheritance. After something as emotional as the death of a spouse or parent, the last thing the surviving relative wants to do is face a legal battle in court.

This stress can cause family fighting, especially if one sibling who was a primary caregiver for a parent feels that another sibling who provided no care should not receive an equal legacy. Your children may squabble so much that their relationships suffer or they even become estranged as a result of your failing to plan your legacy.

Compare this to a situation where you had created a will and named an executor to disperse their assets. The executor, often with the help of an attorney, handles the legal process of distributing assets. All assets are distributed according to your wishes, which can mitigate family infighting. Your loved ones can be spared unnecessary emotional distress.

If you have not performed estate planning, and you want a say in how your assets are distributed, then it is critical to begin estate planning now, before anything happens. An attorney can educate you on estate planning issues, help you determine how to allocate assets, and make sure that plans are in place for you to leave a lasting legacy.

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