A few years ago, we met with the adult children of a successful contractor from Suffolk County. Their father had built a significant business from the ground up, owned several properties, and always told them, “everything I have is for you kids.” He passed away suddenly, without a will. The family assumed his wishes were clear enough to be honored. Instead, they discovered that their next year would be spent in Surrogate’s Court, where their father’s spoken wishes meant nothing. His legacy was now subject to a plan he never made—the one written into New York State law.
Every person with assets in New York already has an estate plan. The question is whether it’s the one you designed, or the one the state designed for you. When you don’t leave instructions behind, you are considered to have died “intestate.” In these cases, the law doesn’t try to guess your intentions. It simply follows a rigid formula for distributing your assets. Stewardship.
New York’s Intestacy Laws: The State’s Plan for Your Assets
When a person dies intestate, their estate is administered under the supervision of the Surrogate’s Court. The process is public, can be expensive, and often takes far longer than families anticipate. The rules for who inherits are laid out in the Estates, Powers and Trusts Law, or EPTL. The statute—EPTL § 4-1.1—provides a strict hierarchy for distribution.
If you have a spouse and children, for example, the law dictates your spouse receives the first $50,000 of your assets, plus half of the remaining balance. Your children receive the other half, split equally among them. This formula doesn’t consider the nuances of family relationships, the needs of a particular child, or whether you might have wanted to provide more for your spouse’s security. For blended families, the results can be especially disruptive, often leaving a surviving spouse with far less than the decedent would have intended.
The court also appoints an administrator for the estate—a role that may not fall to the person you would have trusted most. This entire process cedes control. An intentional estate plan, starting with a will and often including a trust, replaces the state’s default rules with your own deliberate instructions.
Planning for Incapacity: Appointing Your Custodian
Effective estate planning is about more than distributing assets after death—it also prepares for a time when you may be unable to manage your own affairs. Who would pay your bills, manage your investments, or make critical medical decisions if you were incapacitated by illness or injury?
Without a plan, your family would have to petition the court to have a guardian appointed. This is a complex and often emotionally draining legal proceeding called a conservatorship. It is public, time-consuming, and strips you of your autonomy. The alternative is to proactively appoint people you trust to act on your behalf.
We accomplish this through two key documents:
- A Durable Power of Attorney: This document allows you to name an “agent” to handle your financial matters. This person has a profound legal responsibility—a fiduciary duty—to act solely in your best interest. They can manage bank accounts, file taxes, and handle real estate matters, but only as you direct.
- A Health Care Proxy: Here, you appoint an agent to make medical decisions for you if you cannot communicate your own wishes. This is the person who will speak with doctors and ensure your preferences for treatment are respected.
Choosing these agents is one of the most important decisions in estate planning. It is an act of profound trust, placing the stewardship of your well-being into another’s hands.
Using a Trust to Maintain Privacy and Control
While a will is the foundational document for expressing your final wishes, it does not avoid the probate process in Surrogate’s Court. A will is essentially a set of instructions to the court. For many families, especially those on Long Island with significant real estate holdings or business interests, a revocable living trust is a more effective instrument.
Creating and funding a trust during your lifetime allows your assets to pass to your beneficiaries privately and efficiently, outside of the court system. You appoint a trustee—often yourself, initially—to manage the assets. Upon your death or incapacity, a successor trustee you’ve chosen steps in to manage or distribute the assets according to the precise terms you established.
A trust offers a level of control that a will cannot. You can structure distributions over time for a young beneficiary, protect assets from a beneficiary’s creditors or a divorce, or establish a framework for managing a family business across generations. It transforms estate planning from a simple transfer of wealth into a deliberate act of legacy preservation.
Returning to the contractor’s family, a well-drafted trust would have kept their inheritance out of the courts, saved them thousands in legal fees, and ensured their father’s business could continue without interruption. It would have honored his true intentions, rather than defaulting to the cold letter of the law.
The difference is foresight. Taking the time to formalize your plan ensures your voice—not the state’s—guides your family’s future.
If you are unsure how your assets would be distributed under New York law, our first step is a confidential review of your family and financial picture. I invite you to schedule a consultation to map your current situation and discuss the framework for your legacy.
