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If a Loved One Dies Without a Will

“I am not ready yet!”

A Will is a very important document and the process should not be hurried. If the client wants to wait to make a Will, then we have to respect their decision. There is no rush, right?

With the client’s words still hanging in the air, I started thinking about Calvin Coolidge, the 30th president of the United States (1923-29). His nickname was “Silent Cal.” He was also in office when my client was born.

Expecting a sense of urgency from an almost 100-year-old client and finding none matches Americans’ general attitude toward Wills. Sixty-seven percent of Americans do not have a Will. “Haven’t got around to it yet,” is the number one reason cited.

In certain circumstances, not having a Will is only a tiny inconvenience. The first spouse to pass away may have named the surviving spouse as beneficiary and joint owner on all assets. With just a few death certificates and forms, a loved one’s assets would flow directly to the survivor without court intervention.

The situation changes if a deceased love one’s assets are titled solely in their own name. In order to gain control over those assets, an administration proceeding would be required in New York to appoint an administrator to handle the estate. Similar to a probate proceeding, an administration petition is filed in the Surrogate’s Court of the county where the decedent had their residence.

The petition lists all the closest living heirs of the decedent and predeceased heirs so the court clerks can understand the family structure. Often, a family tree accompanies the petition. The person applying to become administrator of the estate is usually the spouse or closest living relative and they are entitled to a commission.

Close relatives may renounce their right to become administrator if they do not wish to take on that responsibility.

A paid funeral bill and original death certificate round out the necessary documents required for the court proceeding.

Surrogate’s Court has a filing fee schedule based on the size of the estate. The highest fee is $1,250 for estates valued at more than $500,000. This fee does not include the estate attorney’s legal fees.

While a Will or trust lays out specific instructions and preferences for the distribution of your assets, intestacy (dying without a Will) is controlled by statute. A decedent leaving a wife and children will have $50,000, plus half of the remaining estate go to the spouse and the rest be divided equally by the children.  

A spouse surviving without children would inherit everything, and the same goes for children surviving without a spouse. If no child or spouse is living, then siblings would inherit everything. If children or siblings have predeceased the decedent, their children would inherit “by representation.”

Simply put, as an example, a decedent dies with $90,000. He had two children and three grandchildren. One child predeceased, leaving two of the grandchildren. Each of the two grandchildren would inherit $22,500 (splitting the amount their parent would have received) and the surviving child would get $45,000.

If both children predeceased, leaving only the three grandchildren, then each grandchild would receive $30,000, and heirs of the same generation would split the estate equally. This is different from “per stirpes,” which is found in Wills and trusts and allows for a predeceased heir’s offspring to receive or split their parent’s share without regard to any other person in their generation.

Intestate statutes are logical and reasonable. Families are not. The brother you have not spoken to in 30 years will inherit your house. The niece you have never met will inherit your bank accounts. If this seems like a good idea, then you can forget about making your Will. For the rest of us, do not wait 98 years.

Alan D. Feller, Esq., is managing partner of The Feller Group, located at 625 Route 6, Mahopac. He can be reached at


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