Estate Issues When There Is No Will

White Plains, NY (Law Firm Newswire) November 29, 2013 – When someone dies and does not leave a will stipulating what should happen to their, numerous issues must be decided.

Often, certain assets fall outside of a will. There are assets that are not dictated by a will, including the proceeds of life insurance; bank accounts, real estate and assets held jointly; property held in a living trust; funds in a 401(k) or IRA; a retirement plan with a beneficiary, and community property with rights of survivorship. The inheritor of such properties – those not covered by a will – depend on other legal documents that dictate the beneficiary designation or co-ownership.

When no will has been left to name an executor and no living trust has been drafted, New York state law dictates who may fill the role of executor to disburse the assets left behind. A probate court may deem that a proceeding is necessary, in which case the court will appoint an individual from that list to serve. If there is a registered domestic partner or surviving spouse, that person is typically at the top of the list of executors to be appointed. After that, the role usually goes to a blood relative, starting with adult children, then other family members.

Without a will (intestate succession law), spouses, registered domestic partners and blood relatives are the only survivors who may inherit assets. Any surviving spouse generally receives the largest share of any property; if there are no surviving children, the spouse typically will be given all the property. If there is no surviving spouse of or children, distant relatives usually inherit the property. The state will take all assets in the cases where no relatives are located.

A surviving spouse is defined as someone who was legally married to the deceased at the time of death. If there was a legal separation or pending divorce, the court may need to determine whether the survivor is legally considered a surviving spouse. If one member of a same-sex couple dies in a state that does not recognize same-sex marriage, the courts may need to determine what the remaining partner can inherit.

To determine the issues regarding settling an estate that does not have a valid will or one in which the validity of the will is questionable, contact an experienced New York estate planning attorney.

To learn more, visit http://www.elderlawnewyork.com/