WILLS: THE BASICS

With some exceptions, without a will, at your death your property will pass to your “distributees” (a distributee is one who inherits if there is no will), in the following order:
  1. Your spouse and your issue. “Issue” includes, for example, your children or the grandchildren of a child who has predeceased you. Your property will pass as follows: $50,000.00 to your spouse and one-half of the remainder, and the other one-half of the remainder will go to your issue.
  2. If you leave no issue surviving you, then your property passes to your spouse.
  3. If you do not leave a spouse surviving you but do leave issue surviving you, all of your property will pass to your issue.
  4. If you do not leave a spouse or any issue, you property will pass to your parents.
  5. If you do not leave a spouse, issue or parents, your property will pass to the issue of your parents, for example, brothers and sisters or their children if they have predeceased you.

Note that adopted children and their issue are included. Also note that exceptions to the foregoing include that jointly owned property will pass at your death to the other joint owners, and that property or money payable to a named beneficiary, such as a named beneficiary on a life insurance policy, will pass directly to the named beneficiary.

Without a will, an administrator will be appointed by the Surrogate’s Court (the specific Surrogate’s Court will be the court of the county in which the decedent resided at his or her death). While almost any person, whether related to you or not, may be appointed the administrator, the court will follow a certain order of preference, the first preferences being as follows:
  1. Spouse.
  2. Children.
  3. Grandchildren.
  4. Parents.
  5. Brothers and Sisters.
  6. Other persons who are distributees in the order specified by the statute.
  7. A person who is not a distributee but to whom all distributees consent.
  8. The public administrator or the chief fiscal officer, for example, the treasurer of the county.

However, with a will, you may:
  1. Change the rules as to who inherits your property (except that you cannot omit your spouse entirely).
  2. Appoint an executor, who would be your choice to administer the estate, as well as an alternate or successor person to act as executor.
  3. Create a trust for a minor child or grandchild or a young adult child or grandchild so that they receive the benefit of your assets but do not control them until they reach a specified, more mature age.
  4. Create a trust for a particular purpose, for example, for children or grandchildren to attend college or some other post-high school education.
  5. Appoint persons to be trustees of the trusts.
  6. Make a gift to a religious or charitable institution.
  7. Make gifts to children, other relatives, and friends of cash or of specific items of property.
  8. Forgive debts that family or friends may owe to you.
  9. Authorize and direct the sale of your residence and the division of the sale proceeds.
  10. Direct that under no circumstances shall a particular, named person, including children, share in your estate or be appointed as an executor, administrator or trustee.

However, it is important to note that your will cannot affect how jointly owned property passes or how money or property with a named beneficiary passes.