A few months ago, a man came into my Manhattan office. His wife of thirty years had just passed away without a will, and he assumed everything would automatically pass to him. He was shocked to learn that under New York’s intestacy laws, he was not the sole heir. Because they had children, a significant portion of his wife’s estate was legally earmarked for them. He wasn’t just grieving a loss—he was now facing a division of assets he had always considered shared.
This situation is far too common. Decades of practice in estate law have shown me that what people think the law says and what it actually says are often miles apart. These myths, passed between friends or gleaned from television, lead to unintended consequences, family disputes, and significant financial loss. Stewardship of a family’s legacy requires clarity, not assumption.
Here are a few of the most persistent—and damaging—myths I encounter.
Myth: A Last Will and Testament Avoids Probate
This is the most widespread misunderstanding in my field. Many people believe that by signing a will, their family will bypass the court system. The opposite is true. A will is a set of instructions for the Surrogate’s Court. It is the very document that initiates and guides the probate process.
Probate is the formal process where the court validates your will, appoints your executor, and oversees the settlement of your estate. Your executor must inventory assets, notify creditors, pay debts, and file tax returns before distributing anything to your heirs. This process is public, can take nine months to a year or more, and incurs legal and court fees. A will ensures your wishes are known, but it does not keep your estate out of court.
For clients who prioritize privacy and efficiency, we often discuss other instruments, such as a revocable living trust. Assets held in a trust pass outside of probate, allowing for a private and often faster administration managed by your chosen trustee.
Myth: My Spouse Automatically Inherits Everything
As the widower in my office learned, this is a dangerous assumption. If you die in New York without a will—a situation known as dying “intestate”—the law provides a default distribution plan. It does not automatically grant everything to the surviving spouse, especially if you have children.
Under New York Estates, Powers and Trusts Law (EPTL) § 4-1.1, if a person dies without a will and is survived by a spouse and children, the spouse receives the first $50,000 of the estate plus one-half of the remaining balance. The children inherit the other half. This can create immediate financial strain, particularly if the family home or primary assets were held solely in the deceased’s name.
A deliberately crafted estate plan replaces this state-mandated formula with your own instructions. It is the only way to ensure your assets are distributed according to your wishes and provide for your spouse in the manner you see fit.
Myth: Putting My Child’s Name on My Deed Is Smart Planning
I often see clients who, trying to simplify things, have added an adult child to the deed of their home as a joint owner. The goal is to pass the property directly and avoid probate. While well-intentioned, this is one of the riskiest informal strategies.
First, when you add someone to your deed, you give them a present ownership interest. Their share of the property is now exposed to their financial risks. If your child gets divorced, is sued, or files for bankruptcy, your home could become an asset subject to their creditors’ claims. You could be forced to sell your own home to satisfy their debts.
Second, you lose full control. If you decide to sell the house or take out a home equity loan, you need your child’s consent and signature. What starts as a simple gesture can become a complex entanglement.
Finally, this action can create unforeseen capital gains tax consequences. There are more prudent ways to transfer real property, such as through a trust, which can achieve the goal of avoiding probate without exposing your most valuable asset to risk.
Myth: I Don’t Have a Large Estate, So I Don’t Need a Plan
Estate planning is not just for the wealthy. It is for anyone who wants to control what happens to their property and, more importantly, who will care for their minor children. If you have young children, the most critical part of your will is the nomination of a guardian.
Without a will, a court will decide who raises your children. A judge who doesn’t know you or your family will make the most important decision of your children’s lives. It may not be the person you would have chosen. This process can become a contentious and painful court battle between family members.
An estate plan is the only way to ensure the people you trust are empowered to act on your behalf, care for your children, and manage your affairs. It is an act of stewardship for the people you love, regardless of the size of your bank account.
These myths persist because they offer simple answers to complex questions. But a family’s future is too important to be left to assumption. A prudent starting point is to create a simple, confidential list of your assets, liabilities, and the people you wish to be your beneficiaries and fiduciaries. That single document is the foundation for a productive conversation about a plan that reflects your true intentions.
