Our Time Press

Attorney Lola Waterman Speaks on… Testacy

Lola Waterman

The antonym of testator is the noun intestate, meaning “one who dies without a will.” In Merriam-Webster.com. Last week, we discussed the importance of having a will. This week, we will shift our focus to the process of distributing the estate of a person who dies without a will.
It is important that we begin this discussion with an overview of the Surrogate’s Court, the court that oversees the estate of a decedent, with or without a will. In New York, if the decedent dies with a will, the Surrogate’s Court determines the validity of the will via a probate proceeding; designates someone to be in charge of the estate (the executor); settles any disputes that may arise between the executor and beneficiaries, creditors, or other third parties; and appoints guardians ad litem to find missing relatives, among other things.
The Surrogate’s Court also handles miscellaneous proceedings which include kinship hearings to determine heirs of the decedent, applications to open safe deposit boxes, removal of the executor/administrator/trustee, turnover proceedings, and more.
Where the decedent does not have a will, an estate administration proceeding may be commenced where the decedent’s assets will pass by operation of law. In New York, the law that governs how a deceased person’s estate is to be distributed is aptly referred to as the Intestacy Laws, and can be found in the Estates, Powers and Trusts Law (EPTL) §4-1.1. Under this law, the Surrogate’s Court is charged with determining who the “distributees” of a decedent are – meaning those who are eligible to inherit from a decedent’s estate.
Pursuant to EPTL §4-1.1, a decedent’s assets will be distributed as follows: A spouse inherits one hundred percent of the decedent’s assets if there are no children. If there are children, the surviving spouse inherits the first $50,000, plus half of the remainder; the children get the other half. For example, if there is $100,000 in the decedent’s estate, the spouse will inherit $75,000 ($50,000 + $ $25,000 [1/2 of the remaining $50,000]), and the children will inherit $25,000. If there is no spouse, the children inherit one hundred percent of the decedent’s assets. Next in line are one or both of the decedent’s parents, provided there are no children or spouse.
If there are no parents, children or spouse, the siblings of the decedent will inherit everything. And if there are no siblings (or issue of siblings), parents, children or spouse, one-half of the decedent’s estate goes to one or both of the decedent’s surviving grandparents of one parental side, and the other one-half to one or both of the surviving grandparents of the other parental side. Are you still with me? Well suffice it to say, the law will go as far as great-grandchildren of grandparents before an estate escheats to the state.
So how does a court determine who the heirs are? By reviewing a Family Tree, which ordinarily should include the identities of relatives, whether deceased or living. This document is helpful and is routinely utilized by courts in determining the next of kin. But as witnessed in the administration of Prince’s estate, a family tree is not conclusive evidence of heirship. With over 130 million records sold, over 39 albums released, countless musical awards and inductions into Halls of Fame, Super Bowl performances, a few name changes, Prince was declared by many as a guitar virtuoso, with a musical artistry surpassed by no other. Yes, Prince was that guy. But when he passed away in 2016 at the age of fifty-seven without a will, with an estimated $300 million dollar estate, pandemonium broke loose.
The Carver County District Court, Probate Division, in Minnesota first had to determine who Prince’s heirs were. Over thirty individual claims arose, including those from alleged children and siblings. The Probate Court deemed only six of those claims to be Prince’s half-siblings and therefore, heirs of his estate. Prince was unmarried and the alleged children have failed or yet to meet their burden of proof. A similar fact pattern in New York State would have yielded the same results as both New York and Minnesota have similar intestacy laws. Four years after Prince’s death, the matter is still pending, and his six half-siblings are yet to receive their share of his estate. The aftermath of Prince’s passing has left behind confusion, a massive tax bill, unhappy heirs, and perhaps, needless court and legal expenses. Having an estate plan in place may have been an antidote to all of the confusion and financial blows to Prince’s estate.
The lesson here is that not having an estate plan in place may, and often, leads to undesired outcomes, depending on each person’s circumstance. With an estate plan, you can take the reins in determining who your beneficiaries are, whether it be a charity, your church, your friends, or relatives. Your circumstance is unique to you alone, and the intestacy laws are not designed to precluded irresponsible children, estranged spouses, or malicious cousins from inheriting from your estate. Take the time to think through your estate plan, and reduce it into writing.
FYI – If the estate of the decedent is valued at less than $50,000, then a voluntary administration proceeding can be commenced. Aside from a filing fee of $1.00, a benefit of a voluntary administration proceeding is that the process is designed to be simple, quick and cost-effective, and there are several bar associations that provide pro bono services to parties who need assistance. I can be reached at lolaowaterman@gmail.com. Lola Waterman, Esq.

The information provided in this article does not, and is not intended to, constitute legal advice and is for general informational purposes only. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. The views expressed in this article are those of the individual author writing in her individual capacity only.

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on email
Email

Leave a Reply