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Long Island Estate Planning Attorney | DDSS

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We help Long Islanders plan for the future and provide for their loved ones. Speak with a Long Island estate planning attorney at DDSS today.

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Consequences of Dying Without a Will in New York State

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Consequences of Dying Without a Will in New York State

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It is estimated that more than half of American adults do not have wills, and while it is easy to understand why the typical 20-year old doesn't, it's harder to understand for a 50- or 60-year old. Death and taxes are surely no less certain than they were in the era of Benjamin Franklin's famous dictum. Is it that some people think they don't have enough property to need a will? Is it simple avoidance because they're not planning on dying anytime soon? Is it the superstitious belief that the making of a will might accelerate the inevitable? Whatever the "reason," it is almost always insufficient to justify the result, which is to die intestate (i.e., without a will).

A will, at its most basic level, is a set of instructions stipulating who gets what and who manages the testator's property immediately after the testator's death. For those with adequate wealth, it is also one of several documents that, taken together, create an estate plan designed to minimize estate taxes and ensure an orderly administration of property following the testator's death. A will also is used to appoint a guardian if there are minor children.

A will ensures assets go to the people and charities your client chooses. Otherwise, assets will pass in accordance with state intestacy laws, except to the extent the assets pass directly to named beneficiaries by operation of law-as may be the case with retirement accounts or life insurance proceeds or property held in joint and survivor name. Assets that pass under the terms of the will-or, in the absence of a will, by intestacy-are referred to as the probate estate.

For a New York resident without a will, a surviving spouse inherits the entire probate estate if there are no children or other descendants. If there are descendants, the surviving spouse gets the first $50,000 and the balance is divided one-half to the spouse and one-half to the decedent's descendants.

If there is no surviving spouse but there are descendants, the entire probate estate in an intestacy will pass to the deceased person's descendants.

These children, grandchildren, or even great-grandchildren will take by representation. For example, if the descendants' distributable portion of the estate were $100,000, and if Child A, in the diagram above, predeceased the decedent but Child B survived, Child's A's surviving children (Grandchildren 1 and 2 in the diagram) would share their deceased parent's share equally ($25,000 each) and Child B would receive $50,000. However, if Child B had also predeceased the decedent, all three grandchildren (1, 2, and 3) would share the distributable amount equally ($33,333 each). (This scheme is different from a so-called per stirpes division, which appears in many wills; in a per stirpes distribution, Grandchildren 1 and 2 would each receive $25,000, and Grandchild 3 would receive $50,000 if Child B predeceased).

If there are no descendants and no spouse, the probate estate instead passes to the decedent's parents, equally, or all goes to the surviving parent. If no parents survive, the estate passes to the deceased person's siblings (or children of a deceased sibling). Half siblings count the same as whole siblings.

In the absence of a surviving spouse, parent, sibling, or descendants of siblings, the probate estate generally will pass one-half to the deceased person's mother's relatives, and one-half to the father's relatives, according to a specified order that begins with grandparents on each side and continues with collateral relatives as distant as the decedent's first cousins once removed (great-grandchildren of the decedent's grandparents). If the closest surviving relative is a second cousin (a great-great grandchild of the decedent's grandparents) or more remote relative, the estate passes ("escheats") to the State of New York. The absence of a will raises the possibility that the decedent might benefit distant family members with whom the decedent had no close relationship, or that the decedent's property might pass to the state, rather than favored charitable causes such as The New York Community Trust. Intestacy rules vary from state to state.

If there are no surviving family members, the probate estate will escheat to the State of New York.

For an individual who owns a business, has unusual assets, wants to provide for charity, such as by creating a charitable fund at The New York Community Trust to carry out a charitable interest, or has a family member with special needs, a properly executed estate plan including a will is a must.
Updating a will
A will should be updated if there is a major life change. While this can be done by codicil, it is usually recommended that a new will be signed, so that anyone who had had an interest under the original instrument but has been omitted does not necessarily have to receive notice of the probate process.

Major life events that call for updating one's will include:

Marriage, divorce, or remarriage

Birth/adoption of children

Death of a person named in a prior will

Retirement

Change of financial circumstances-either an increase, such as through an inheritance or sale of business, or a loss, such as a bankruptcy or significant decrease in value of major assets

Finding a lawyer
The best way to find a lawyer to prepare a will probably is to ask friends for a referral. Alternatively, the local bar association may have a referral service. If finances and ownership of assets are fairly straightforward, an online free will may be better than nothing. But it is strongly recommended that even this be reviewed by an experienced lawyer.

Many lawyers have a checklist to help a prospective client identify their assets, including insurance and retirement accounts; family members; and others-including charity-that they want to benefit. Beneficiary designations on any accounts also must be taken into consideration. Periodically, it is a good exercise to ask insurers and custodians of pension assets to confirm who is on file as the beneficiary of life insurance and plan assets. Because the formalities for changing these designations are so limited, it is a very easy thing to update to align with current wishes.
Identifying an executor
The executor generally submits the will for probate and marshals the estate's assets. As a practical matter this may mean supervising cleaning out a home or apartment, and locating financial and other assets. When a lawyer drafts a will, he or she normally will ask the client for a list of all assets, which will be used to help the executor.

Identifying an executor is often a stumbling block to finalizing a will. For a person without a spouse or children, the most obvious person is a trusted friend. But if one's friends are the same age or older, there is a good chance they won't survive-or won't have the desire to handle the estate administration-in which case naming a potential successor is good practice. Another option is to name a bank or other institutional executor, although the bank should be consulted on its willingness to serve. In some cases, a lawyer who drafts the will may be willing to serve. In New York, the client will be asked to execute a disclosure, separate from the will, acknowledging that the attorney may receive a full statutory commission as executor and be paid reasonable compensation for providing legal services to the estate. This must be witnessed by someone other than the designated executor.
Who submits a will for probate?
Individuals are often reluctant to tell family members that they have a will and where the original is, but that is of critical importance. Commonly, the original will is stored safely in an attorney's safe or vault, but it is incumbent upon the client to leave instructions for the executor or next of kin about locating that original document. It should not be kept in a safety deposit box, which will be sealed upon the owner's death.
Conclusion
A will ensures assets go to the people and charities your client chooses. In the absence of a will, assets will pass in accordance with state intestacy laws, except to the extent the assets, such as IRA accounts, may pass directly to named beneficiaries by operation of law. A will should be updated if there is a major life change that may affect intended beneficiaries.
For further information, see:

EPTL §4-1.1

SCP §2307-A

nycourts.gov/courthelp/WhenSomeoneDies/ intestacy.shtml

New York City Bar Association legal referral service at nycbar.org/get-legal-help/

Majority in U.S. Do Not Have a Will, news. gallup.com/poll/191651/majority-not.aspx

Creating a charitable fund at death: nycommunitytrust.org/information-for/ professional-advisors/forms/

Written by Jane L. Wilton, General Counsel, The New York Community Trust
©The New York Community Trust 2020

This material was developed for the use of professionals by The New York Community Trust. It is published with the understanding that neither the publisher nor the author is engaged in rendering legal, accounting, or other professional advice. If legal advice or other expert assistance is required, you should speak to your own tax or other legal or accounting advisor.

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Consequences of Dying Without a Will in New York State - The New York Community Trust

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It is estimated that more than half of American adults do not have wills, and while it is easy to understand why the typical 20-year old doesn't, it's harder to understand for a 50- or 60-year old. Death and taxes are surely no less certain than they were in the era of Benjamin Franklin's famous dictum.

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Long Island Will Lawyer I Davidow, Davidow, Siegel & Stern

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Prepare your will now so your assets are distributed per your wishes. Contact a Long Island will lawyer at Davidow, Davidow, Siegel & Stern.

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1455 Veterans Highway

Suite 203

Islandia, NY 11749

631-234-3030

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A Last Will and Testament is also called a Will. A Will is a written statement of what a person wants done with their property after they die.

A Will can have directions for how property should be divided and names an Executor to carry out those wishes. Wills can also appoint a guardian for their children.

The Will should be kept in a safe place where it will be easy to get to if it is needed. If a lawyer prepared the Will for you, you may want to discuss with the lawyer where to keep the original Will. In some counties, the Surrogate's Court has a vault where Wills are stored for safekeeping until the person dies.

The Will must be filed in Surrogate's Court and admitted for probate before the wishes of the person who died can be followed. If the person who died had less than $50,000 of personal property, then a small estate (also called a voluntary administration) can be filed instead.

Wills are a confidential document until the person dies. Once the Will is admitted to probate or a small estate, it becomes a public document that anyone can see and read.

IMPORTANT: Don't remove the staples from the Will when making copies. Doing anything to the Will can be a reason to invalidate it. If the staples were removed, you must tell the Court in a signed and notarized affidavit why they were removed, where it has been kept since it was executed, and that you believe no substitutions or changes have been made since its execution.

COURT LOCATOR

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The official home page of the New York State Unified Court System. We hear more than three million cases a year involving almost every type of endeavor. We hear family matters, personal injury claims, commercial disputes, trust and estates issues, criminal cases, and landlord-tenant cases.

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At what age should I begin to create an estate plan?

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At what age should I begin to create an estate plan?

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The Listen to Lawrence Letter: At what age should I begin to create an estate plan? - Davidow, Davidow, Siegel & Stern, LLP

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January 4, 2023 * Volume 4 Issue 104 I hope you all had a wonderful holiday season and that the New Year is getting off on the right foot. This LISTEN TO

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Everyone should do some basic estate planning-that is, planning to make sure that your wishes are followed after your death, your family is spared unnecessary expense and delay, and someone you trust will be in charge if you are ever incapacitated and unable to manage things on your own.

The basic estate planning documents that most New Yorkers need are:

a will, to leave your assets and name your executor

a durable power of attorney (POA) for finances, to name someone to take care of your finances if it's ever necessary

a living will (called a document directing health care in New York), to spell out your end-of-life wishes, and

a health care proxy, to name someone to make sure your health care wishes are honored.

Many New York residents should consider two other estate planning topics as well:

Avoiding probate after your death. Unless you do some planning ahead of time, your family may have to conduct a probate court proceeding after your death, to get court approval to transfer your assets to the people who inherit them. For many people, probate is a waste of money, easily avoided with a living trust or other simpler methods.

Minimizing New York estate tax. Currently, New York imposes its own estate tax if you die leaving behind more than a certain amount of property. It's a high threshold (see below), but it's lower than the federal estate tax threshold. So even if you don't have to worry about federal estate taxes, your estate might still owe New York state estate taxes. If you think this might apply to your estate, talk to an experienced lawyer about methods of reducing the bill.

The articles below cover the basics of estate planning in New York.

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If you're making an estate plan in New York, start here. Learn how to make a will, trust, and power of attorney (POA) that are valid in your state, or get more inf

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Requirements for Valid and Enforceable New York Wills

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Requirements for Valid and Enforceable New York Wills

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Requirements for Valid and Enforceable New York Wills - Davidow, Davidow, Siegel & Stern, LLP

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Our Long Island estate planning attorney discusses the requirements for creating a valid will in the state of New York. Contact our lawyer for a consultation.

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Long Island Trust Lawyer | Davidow, Davidow, Siegel & Stern

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A Long Island trust lawyer at DDSS can assist you with establishing a trust to protect your assets while providing for those you love most.

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New York City Bar - Legal Referral Service

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The main thing to remember about a living trust is that it goes into effect while you are alive. Often, living trusts help you during your life and then gives away the property after your death. The main reason for this is to avoid the probate process, which can be expensive and take a lot of time. Although most people set up living trusts to benefit their families, you can name anyone as a beneficiary, including yourself. For example:

You can put an investment account that brings income into a trust and name yourself as beneficiary while you are alive and then, after you die, have the income go to your spouse, children, and/or other relative, friend, or charity, until the trust ends and the assets are distributed.

If you have an illness that is likely to disable you, you can establish a living trust and put the title to your assets into the trust for your benefit, naming yourself as trustee and someone to replace you as trustee when and if you become too sick to continue.

In each of these examples, after your death, use of the property or receipt of income from the trust passes to one or more beneficiaries without the need for probate.

When you create a living trust, you must place the asset into the trust once the trust document is signed. For instance:

If the asset is a house, you must execute a new deed giving it to the trust.

If the asset is a car, you must transfer the title to the trust.

If the asset is a bank account, you must transfer the funds to a new bank account in the name of the trust.

Revocable Living Trust

The creator of a living trust decides whether it can be changed or revoked. If you include a paragraph in the trust that says it can be changed or revoked, then it is called a "revocable living trust." In that case, you can easily change or revoke your trust.

Irrevocable Living Trust

You may include a statement in the trust that it cannot be amended and revoked. This makes it an irrevocable living trust. However, the law allows even irrevocable trusts to be amended or revoked under certain circumstances.
Legal Editor: Jill A. Kupferberg, March 2015 (updated March 2016)

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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Living Trust - Revocable Vs Irrevocable | NYC Bar

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Explore the benefits for creating a living trust and how to place assets into it. Learn the difference of revocable vs. irrevocable trusts.

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Using a Trust to Avoid Going to New York Probate Court

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Using a Trust to Avoid Going to New York Probate Court

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Using a Trust to Avoid Going to New York Probate Court - Davidow, Davidow, Siegel & Stern, LLP

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Our Long Island estate planning attorney discusses how a living trust can help your heirs avoid the probate process. Call our lawyer for an appointment.

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The Listen to Lawrence Letter: Gifts from trusts - Davidow, Davidow, Siegel & Stern, LLP

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March 14, 2024 * Volume 5 Issue 225 Gifts from trusts... CLIENT QUESTION: My daughter is the trustee and beneficiary of my irrevocable Medicaid trust

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The benefits of creating a will sooner rather than later

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The benefits of creating a will sooner rather than later

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While the number of younger people making estate plans is going up, experts state it is far too few.

According to AARP, only 24% of people aged 18 to 34 have a will. When you go from 25 to 54, that number goes down 3%. Those over the age of 55, it's still less than half of the people, with only 45% of individuals ages 55 and older having a will.

Like so many others, Ronnie Miller has have a long list of reasons for not having done this before.

What You Need To Know

Less than half of Americans have a will

Many say they don't want to think about mortality, don't want to pay lawyer costs to get one done and don't want to spend time in a lawyer's office to get it done

VLAWSITY is a company that allows people to finalize wills from home, on a computer, with costs being no more than $250

On a trip with his wife to Mexico, the plan called for cliff jumping, and that got Miller thinking maybe he should have a will.

"You just never know what could happen. I've known friends that unfortunately have had some situations where they weren't prepared and it just caused a mess," Miller said.

Experts state that people never want to think about death until there is a major life-changing event that forces them to.

"You're thinking about something that you don't want to think about death. You're spending money that you don't want to spend, and then you're going to a law firm that you don't want to go to. You're never going to get it done with those three things in the way," VLAWSITY Co-founder and Vice President Kevin Barone said.

Barone created an online estate planning company which allows people to create and finalize their will and testament from home.

"They go on, they're going to answer a series of questions. The best part is within about 30 minutes or less, you've completed the entire process," Barone said.

Barone hopes it is a game changer in New York, because he finds the statistics frightening.

"The bottom line is everybody thinks you're invincible, myself included, until you're not. It's at that moment you may not have enough time to do something like this. You may not have enough time to do your estate plan," Barone said.

Everything from finances to possessions to the care of children will be left up to the courts for individuals without a will.

"You do not want a court deciding ... who takes care of your children. You want somebody that you know shares your values and you want to know that it's somebody you trust," Barone said.

Barone says it is also critical that people keep their wills up to date, to account for all changes in your life - births, deaths, marriages, divorces, partnerships and more.

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Changing how we plan ahead: The benefits of drafting a will

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While the number of people making estate plans is going up, it's still far too few. In fact, less than half of Americans older than 55 have a will.

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Five Myths About Wills - Davidow, Davidow, Siegel & Stern, LLP

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Many people are confused about how complicated and expensive creating a will is, and there are many myths out there. Let a Long Island Will Attorney tell you the real facts.

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Get Legal Help

The New York State Bar Association runs a service for finding an attorney in good standing. Initial consultations are usually free or discounted: Lawyer Referral Service

Committed to Public Service

We will always provide free access to the current law. In addition, we provide special support for non-profit, educational, and government users. Through social entrepreneurship, we're lowering the cost of legal services and increasing citizen access.

Location: https://newyork.public.law/laws/n.y._estates,_powers_and_trusts_law

Original Source: Law - Estates, Powers & Trusts Law, https://www.nysenate.gov/legislation/laws/EPT (last accessed Aug. 20, 2023).

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N.Y. Estates, Powers & Trusts Law. Refreshed: 2023-08-20

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The Listen to Lawrence Letter: Divorce of a Trustee - Davidow, Davidow, Siegel & Stern, LLP

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July 30, 2024 * Volume 5 Issue 265 Divorce of a trustee...read on: CLIENT QUESTION: Our daughter is the trustee of our 9-year-old irrevocable Medicaid

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Estate Planning for the Most Significant Wealth Transfer in US History

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Estate Planning for the Most Significant Wealth Transfer in US History

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The Great Wealth Transfer: Estate Planning for the Most Significant Wealth Transfer in US History

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This “wealth transfer wave” also comes at a time when the current historically high federal estate tax exemption is set to expire very shortly.

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Six Steps for Estate Planning In New York

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Six Steps for Estate Planning In New York

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Six Steps for Estate Planning In New York - Davidow, Davidow, Siegel & Stern, LLP

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Get started with your estate planning in New York in six steps. A Long Island estate planning lawyer will help you understand how to move forward.

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Seminar Part 13:  Reasons to Avoid Probate

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Revocable vs Irrevocable Trusts | New York Life

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What is the difference between revocable and irrevocable trusts? Learn the difference between the two, and determine which option is better for you.

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The Listen to Lawrence Letter: Is an irrevocable trust revocable? - Davidow, Davidow, Siegel & Stern, LLP

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November 26, 2024 * Volume 5 Issue 299 Irrevocable? Read on: READER QUESTION: If two people create the irrevocable Medicaid trust and one dies, the trust

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What documentation is required for Medicaid in New York state? A guide

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What documentation is required for Medicaid in New York state? A guide

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Medicaid, like all "means-tested" programs where eligibility is based on income and assets, requires extensive documentation to establish eligibility.

Proof is required to verify identity, residence, citizenship, disability (if under age 65 and claiming a disability), marital status, income and resources and, in some cases, other information.

Paying attention to the documentation required to apply for and sustain Medicaid coverage in New York is more important than ever under President Donald Trump's tax cut and government spending bill.

That's because the federal bill includes a $1 trillion reduction in spending over the next decade for Medicaid, the state-federal government insurance program for low-income Americans. And a big chunk of those cuts involve imposing a nationwide Medicaid work requirement that takes effect Jan. 1, 2027.

The legislation requires "able-bodied" Medicaid recipients to work 80 hours a month or qualify for an exemption, such as being a student, caregiver or having a disability. The work requirement applies to parents of children older than 13.

Further, the bill requires states to double Medicaid eligibility checks to twice a year. And states, which administer Medicaid, would have to set up systems to verify a person's employment or exemption status.

While it remains unclear exactly what state regulators would use to verify Medicaid recipients are meeting the new work requirement. Below are key details to know about the Medicaid enrollment process under the current state-run program.

What documentation is required for Medicaid in New York?

Medicaid, like all "means-tested" programs where eligibility is based on income and assets, requires extensive documentation to establish eligibility, state records show.

Proof is required to verify identity, residence, citizenship, disability (if the applicant is under 65 and is claiming to have a disability), marital status, income and resources and, in some cases, other information which may be necessary for an eligibility determination.

The documentation includes:

Personal identification - Birth certificate; baptismal certificate; hospital certificate of birth; passport or immigration papers; current driver's license.

Financial information - Documentation must be submitted to verify all sources of earned and unearned income. The applicant's total monthly income will be compared against the Medicaid income standard to determine if the applicant has excess income. Applicants with excess income are offered Medicaid under the Surplus Income Program.

Those income records include: Award letter from a benefits program; copy of check from benefits program; pay stubs showing earnings; bank statement of interest earned.

More: 58% of NY's rural hospitals were at risk of closing. Now more are in danger. See the list

Asset and resource statements for the last 36 months - Medicaid requires all applicants to open their financial history to a review process. The purpose is to see if the applicant has any unreported income or whether there are any large withdrawals that are not allowed by the Medicaid program, according to the state court system.

This financial review period can vary depending upon details of the application, with many programs looking back up to 60 months, health records show.

This documentation includes:

savings bank books

checking statements

stock and bond certificates

life insurance policies

burial fund, burial plot, or funeral agreement deed to real property

If the documents requested by the Medicaid agency are not obtainable, the applicant should present any substitute evidence available to establish eligibility. Medicaid is jointly responsible with the applicant for exploring all factors concerning eligibility and should assist the applicant.

What help is available to apply for Medicaid in NY?

There are various Medicaid enrollment assistance programs through NY State of Health, the state-run health insurance marketplace.

That includes assistors and brokers who are certified experts who provide free and personalized Medicaid application and enrollment assistance to individuals, families, and small businesses.

Politics: House GOP-led committee probing whether NY 'unlawfully abused' Medicaid. What they allege

To speak with the NY State of Health marketplace customer service center call (855) 355-5777. You can also call the the Medicaid helpline (800) 541-2831.

There are also staff members at local Department of Social Services Offices devoted to aiding with the Medicaid enrollment process. A list of those offices is available through the Health Department's website, at health.ny.gov.

That Social Services list includes the Monroe County offices at 111 Westfall Road, Rochester (585) 753-2750 and Westchester offices at White Plains District Office, 85 Court St., White Plains (914) 995-3333.
(This story was updated with new information)

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What documentation is required for Medicaid in New York state? A guide

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Medicaid work requirements included in Trump, Republican federal legislation will increase eligibility checks in New York. Here's what we know so far.

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The Listen to Lawrence Letter: Trump and Medicaid

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The Listen to Lawrence Letter: Trump and Medicaid

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The Listen to Lawrence Letter: Trump and Medicaid - Davidow, Davidow, Siegel & Stern, LLP

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August 5, 2025 • Volume 6 Issue 370 Trump and Medicaid...read on: READER QUESTION: How does Trump’s Medicaid bill affect my irrevocable

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When putting together an estate plan or any financial plan, you and your attorney should consider the various different state laws that could impact the plan in addition to federal laws. Here are some important items to think about for individuals with ties to New York State.

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The Listen to Lawrence Letter: Clearing up Estate Tax Exemption Confusion

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The Listen to Lawrence Letter: Clearing up Estate Tax Exemption Confusion

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The Listen to Lawrence Letter: Clearing up Estate Tax Exemption Confusion - Davidow, Davidow, Siegel & Stern, LLP

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November 4, 2025 * Volume 6 Issue 392 Let's clear this estate tax exemption up...read on: READER QUESTION: I just read your response about the federal

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This resource provides an overview of what a living trust fund is and what to expect if you obtain this type of fund.

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The Listen to Lawrence Letter: Trading up Within a Trust

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The Listen to Lawrence Letter: Trading up Within a Trust

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The Listen to Lawrence Letter: Trading up Within a Trust - Davidow, Davidow, Siegel & Stern, LLP

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April 28, 2026 - Volume 7 Issue 441 TRADING UP WITHIN A TRUST…read on: CLIENT QUESTION: If you sell a house owned by a Medicaid trust for $500,000 and buy

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Understanding New York’s Estate Tax “Cliff”

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Understanding New York’s Estate Tax “Cliff”

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Understanding the NY Estate Tax Cliff | Wealthspire

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Curious about the New York Estate Tax Cliff? Wondering how it impacts you? Wealthspire Advisors breaks it down for you here.

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Falling Over the Cliff - Davidow, Davidow, Siegel & Stern, LLP

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June 16, 2026 • Volume 7 Issue 443 HELP, I AM ABOUT TO FALL OVER THE CLIFF...read on: READER QUESTION: Lawrence, I take care of my godfather