I recently met with a family whose father, a proud Brooklyn business owner, had passed away. He had downloaded a will from the internet, signed it, and told his children, “Everything is taken care of.” They believed him. They thought the will was a key that would unlock his assets. Instead, they received a citation from the Kings County Surrogate’s Court, and their nine-month journey through probate had just begun. Their relief turned into a legal process they never anticipated.
This is a story I see far too often. Well-intentioned people operate under assumptions about how their affairs will be handled. These beliefs, often based on television dramas or a neighbor’s advice, create outcomes opposite of what was intended. Stewardship of a family’s legacy requires deliberate action—not reliance on common myths.
Myth 1: A Will Lets My Family Avoid Court
This is the most pervasive misconception I encounter. A Last Will and Testament does not avoid court. It is a document written expressly for the court.
When a person with a will dies in New York, the will must be submitted to the Surrogate’s Court in a process called probate. The court’s job is to validate the will, appoint the person you named as Executor, and oversee the administration of your estate. The Executor, now a fiduciary, is accountable to the court for gathering assets, paying debts, and distributing the remainder according to the will’s instructions.
Probate is public, time-consuming, and expensive. While a necessary legal tradition, it is not the swift, private transfer of assets many people imagine. A properly drafted and funded trust—not a will—is the primary instrument we use to keep a family’s affairs out of court and maintain privacy.
Myth 2: If I Don’t Have a Will, the State Gets Everything
The fear of the state seizing all your assets is a powerful motivator, but it is largely unfounded. Your property can “escheat” to the state, but only in the rare case that you die with no locatable living relatives.
What actually happens is dictated by New York’s laws of intestacy—default rules for distributing your property if you leave no instructions. The primary statute is Estates, Powers and Trusts Law (EPTL) § 4-1.1, which sets out a rigid hierarchy of who inherits.
If you have a spouse and no children, your spouse inherits everything. If you have children but no spouse, your children inherit everything. The complexity grows from there. The point is not that the state takes your property—it’s that you surrender your authority to a generic, one-size-fits-all statute. The law will not know you wanted to provide for a beloved niece, a lifelong friend, or a specific charity. Your power to direct your legacy is lost.
Myth 3: My Spouse Will Inherit Everything Automatically
This is a dangerous assumption, especially for families in a second marriage or those with children from a prior relationship. Relying on New York’s intestacy laws can produce a shocking outcome for the surviving spouse. Under EPTL § 4-1.1, if you die without a will and are survived by a spouse and children, your spouse does not inherit the entire estate.
Instead, your spouse receives the first $50,000 of your assets, plus one-half of the remaining balance. Your children receive the other half. Imagine a husband passes away, thinking his wife would be cared for. Instead, she finds that half of their life savings—held in his name alone—is now legally owned by their adult children. This can create immediate financial strain and profound family friction. It’s an outcome almost no one would choose, yet it’s the default for those who do not plan.
This statutory formula makes no distinction for step-children, who are not considered legal heirs under intestacy, or for the specific needs of a surviving spouse. The only way to ensure your spouse is the primary beneficiary is to state it clearly in a will or trust.
Myth 4: Estate Planning Is Only for the Wealthy
Many people associate “estate planning” with death taxes and complex trusts for multimillion-dollar fortunes. That is a small and specialized part of my practice. For most families, planning has nothing to do with wealth and everything to do with control during a crisis.
What if you become incapacitated and cannot make decisions? An estate plan includes a Health Care Proxy to name an agent to speak with doctors. It includes a Durable Power of Attorney to name someone to manage your finances—pay your mortgage, file your taxes—if you are unable.
For parents with young children, a will is the only place to nominate a guardian. Without that nomination, a judge who does not know you or your family will decide who raises your children. That decision is far too important to be left to a court. This is not about finances. It is about stewardship for the people you love most.
Intentional planning gives your family clear instructions during a time of immense stress. It replaces uncertainty with a clear path. The first step is often the simplest: gathering your key financial documents and existing will, if you have one, to schedule a confidential review of your current asset structure and family goals.
