Did You Miss our “Do You Really Need a Will?” Presentation? Watch it now!
May 08, 2020
If you missed Do You Really Need a Will? hosted by Realty Collective’s Victoria Alexander and presented by Attorney Jessica Wilson, you can watch it on our YouTube channel!
We hope you’ll join us. And as always, please reach out if you have any follow-up questions.
- Jessica Wilson | (212) 739-1736 | info@jessicawilsonlaw.com
- Victoria Alexander | (718) 834-1440 | victoria@realtycollective.com
Don’t miss next week’s presentation—spaces still available. Sign up for free below.
The Superiority of the Revocable Trust In a State of Emergency | Thursday, May 14 | 12:00 – 1:15 PM
Jessica discusses, point-by-point, the differences between a Will and a Trust and why a Revocable Living Trust has turned out to be the best choice in a state of emergency such as the Covid-19 pandemic.
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Key Takeaways:
Do you really need a will?
- It depends on how your assets are titled and your family situation.
Terminology
TESTATE
- Means a decedent had a will
- With a will, you can name your beneficiaries and executor
- Cannot disinherit a spouse (greater of $50k or ⅓ share)
INTESTATE
- Means no will or invalid will
- The admin of the estate and distributees are decided by statute (the courts)
SCPA § 1001
The order of priority for granting letters of administration:
- 1. Letters of administration must be granted to the persons who are distributees of an intestate and who are eligible and qualify, in the following order:
- (a) the surviving spouse,
- (b) the children,
- (c) the grandchildren,
- (d) the father or mother,
- (e) the brothers or sisters,
- (f) any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the largest share in the estate, except as hereinafter provided:
- (i) Where there are eligible distributees equally entitled to administer the court may grant letters of administration to one or more of such persons.
- (ii) If the distributees are issue of grandparents, other than aunts or uncles, on only one side, then letters of administration shall issue to the public administrator or chief financial officer of the county.
SEE STATUTE FOR ADDITIONAL PROVISIONS IF NO ELIGIBLE DISTRIBUTEE- PUBLIC ADMINISTRATOR • CAN BE DEEMED INELIGIBLE UNDER SCPA § 707, e.g. felon or “one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.”
CHILDREN
(includes non-marital & adopted)
100% to children, per capita by representation
NO SPOUSE, NO CHILDREN
100% to parent(s) if living.
If no parent, 100% to siblings, per capita by
representation
(See statute)
INTESTATE SUCCESSION EPTL § 4-1.1
Descent and distribution of a decedent’s estate
The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. 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.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving grandparent or grandparents of one parental side, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving grandparent or grandparents of the other parental side, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the greatgrandchildren of the grandparents of one parental side, per capita, and the other one-half to the great-grandchildren of the grandparents of the other parental side, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the onehalf.
(b) For all purposes of this section, decedent’s relatives of the half blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime.
(d) The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled.
IF NO HEIRS CAN BE LOCATED, ASSETS GO TO THE STATE
WILL YOU NEED TO GO THROUGH PROBATE?
- Depends on how assets are titled
- Probate = Assets held solely by decedent
- Non Probate = Beneficiaries on IRAs/401ks/Life Insurance/Trusts, TODs, joint accounts.
- Small estate? Jjointly held real property and less than $50,000 in personal property –>?some personal property exempt.
- What if the only asset is real property?
- In NYS, Real Property vests in a distributee at the time of death which makes the distributee the owners of the property.
- Will need clear title if ever sell the property (through probate/petition to sell/affidavit)
TO AVOID PROBATE ALTOGETHER
– Revocable Trust
– Title all assets jointly or leave beneficiaries where applicable
- Not if minor or disabled bn
- Not all accounts allow
WHEN YOU SHOULD DEFINITELY CONSIDER A WILL OR TRUST
- Estate tax issues
- Want spouse to inherit 100% (instead of children)
- Minor children
- Disinheritance
- Missing distributees
- Separated or considering divorce
- Control over inheritance
- Own a business
- Own real property in sole name
- Charitable intentions