I once met with the widow of a successful Brooklyn restaurant owner. Her husband had died suddenly, without a will. He’d always told her, “Don’t worry, if anything happens, everything goes to you.” He was wrong. Because he had a son from a previous marriage, New York State had a very different plan for his assets—a plan that involved a court, a forced division of property, and a future this couple never intended.
Many people assume their property will automatically pass to their spouse or children in the way they’d wish. But without a will, you don’t have a plan. The State of New York has one for you. This legal framework is called “intestacy,” and it governs the distribution of assets for every person who dies without a valid will.
The State’s Will vs. Your Intentions
The state’s plan is rigid and impersonal. It doesn’t know about your relationships, your values, or the specific needs of your family members. Instead, it follows a strict formula laid out in our Estates, Powers and Trusts Law (EPTL). Specifically, EPTL § 4-1.1 dictates the hierarchy of who inherits your property.
Let’s return to the restaurant owner. According to the statute, because he had a spouse and a child from a different relationship, his estate would be divided as follows:
- His surviving spouse receives the first $50,000 of the estate’s value.
- The remaining balance is split in two: 50% for the spouse and 50% for his son.
This was not what he wanted. He had intended for his wife to have the security of their shared assets to continue her life and manage the business. Instead, she found herself co-owning a significant portion of her late husband’s legacy with a stepson with whom she had a strained relationship. This is the reality of intestacy. It rarely aligns with a family’s actual dynamics or wishes.
The law provides a clear order of succession. If you have no spouse but have children, they inherit everything equally. If you have no spouse and no children, your parents inherit. The list continues to siblings, nieces and nephews, and more distant relatives. If no family can be found, your property ultimately goes to New York State. This is the state’s default plan—and rarely the desired outcome.
Not All Property Is Governed by a Will
Intestacy laws—and even a will—only control certain types of assets, known as “probate assets.” This is property that must pass through the Surrogate’s Court process.
Much of what people own, however, can pass outside of this process as “non-probate assets.” Common examples include:
- Retirement Accounts: An IRA or 401(k) passes directly to the person you named on the beneficiary designation form. That form overrides a will. I’ve seen cases where an ex-spouse inherited a substantial retirement account because the owner forgot to update the form after a divorce.
- Life Insurance Policies: Like retirement accounts, the proceeds go directly to the named beneficiary.
- Jointly Owned Property: Real estate or bank accounts owned as “joint tenants with rights of survivorship” automatically pass to the surviving owner.
- Assets in a Trust: Property held in a properly funded living trust is controlled by the terms of the trust, not a will, and avoids the probate process entirely.
Without a coordinated plan, your assets can end up scattered among different people according to different sets of rules. An intentional estate plan ensures that your will, trusts, and beneficiary designations all work together to achieve your goals.
The Court Process: The Administrator and the Public Record
When there is no will, the Surrogate’s Court must appoint someone to manage the estate. This person is called an Administrator. A close relative, typically the surviving spouse, has the right to petition the court for this role, but the process is not automatic.
It requires a formal court proceeding. Other family members must be notified and have the right to object. If family members disagree on who should be in charge, the court must intervene, leading to delay, expense, and often lasting resentment. The person appointed has a fiduciary duty to manage the estate prudently, but they may not be the person you would have chosen for the job.
Furthermore, this entire process is a matter of public record. The details of your assets, your debts, and who inherits your property become accessible to anyone who cares to look. Most of the families I represent in New York prefer to keep these matters private.
What About Minor Children?
Perhaps the most compelling reason to create a will has nothing to do with property. If you have children under 18, your will is the only document where you can nominate a guardian to care for them. Without it, you leave that decision to a judge who does not know you, your children, or your family’s values. A court will try to act in the child’s best interest, but its decision may not be the one you would have made. This is a profound responsibility, and leaving it to chance is a risk few parents are willing to take once they understand the stakes.
A will allows you to be deliberate. It transforms you from a passive subject of the state’s default rules into the active architect of your own legacy. It is an act of stewardship for the people you care about most.
The first step toward an intentional legacy is often the simplest. Take an hour to list your major assets—your home, bank accounts, investments—and then write down who you want to inherit them and who you would trust to be in charge. This document isn’t legally binding, but it is the foundation for a productive conversation about creating a formal, effective estate plan.
