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Estate Planning, Intestate Estate

When someone passes away in New York State without a last will and testament their property is distributed according the New York’s Estates Powers and Trusts Law (“EPTL”) section 4-1.1 which is entitled, “[d]escent and distribution of a decedent’s estate.” This law applies to property in the decedent’s name alone (without a joint owner or beneficiary designation).

How the property passes depends upon the makeup of the decedent’s closest family members. If the decedent is survived only by a spouse and there are no children then the spouse takes all of the property under this law. The law actually reads, “[i]f a decedent is survived by … [a] spouse and no issue, the whole to the spouse.” (EPTL 4-1.1(a)(2)). The term “issue” is defined in the EPTL as “the descendants in any degree from a common ancestor.” (EPTL 1-2.10). The EPTL further states that “[t]he terms “issue” and “descendants”, … include adopted children.” (EPTL 1-2.10).

If a decedent is survived by a spouse and children, then the law states firstly, the surviving spouse is entitled to fifty thousand dollars ($50,000.00). After the $50,000.00 is given to the surviving spouse the remaining property is divided as follows: one-half to the spouse and the “balance thereof to the issue by representation” (EPTL 4-1.1(a)(1)). If all of the decedent’s children survive him or her then each surviving child would share the one half equally.

EXAMPLE: if the decedent passed with a bank account containing $150,000.00 and no joint owner was named and no beneficiaries were named then the law of intestate distribution would apply. If this decedent had a spouse and three children, the result would be as follows:

Spouse would receive the first $50,000.00 then one half of the remaining $100,000.00, for a total of $100,000.00.

Each of the three children would receive one-third of the remaining one-half of property (after spouse receives the $50,000.00), for a total of $16,666.66 each. The children equally split the remaining $50,000.00.

The distribution scheme gets more complicated when there are predeceased children that are survived by children (grandchildren of the decedent).

To be continued ….

Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.

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