Although it’s best for everyone to have an estate plan–and avoid dying “intestate”–it’s especially important for unmarried partners not to leave the distribution of assets for the law to manage. That’s because state intestacy protocols generally prioritize blood relations, legally recognized marriages, and official adoptions.
Prioritizing Loved Ones
Scary stories about the laws of intestacy and the probate process abound, though in essence, probate is merely the public process of settling debts and distributing assets upon death. If a will has been made, the designated executor handles the process in accordance with state probate protocols. Absent a will, the court appoints an administrator, who settles affairs based on the state laws of intestacy. Again, though there is nothing inherently wrong with the laws of intestacy, they do pre-date modern family arrangements, and if there is no will, loved ones may end up not benefiting from assets. As Victoria Craft of Lippes Mathias LLP explains:
When one passes without a Will, New York State law generally only provides protections for the interests of blood or adopted relatives of the decedent based upon the following priority: married spouses and children (or if no spouse, then just children), and then parents, siblings, cousins, and/or nieces and nephews. If the decedent dies unmarried, without a Will, and their assets do not pass by operation of law to any designated beneficiaries, even a partner or fiancé would be omitted from any portion of the decedent’s estate pursuant to New York State’s intestacy laws. And while it may not be your intent to exclude your partner or fiancé from your estate plan, having no plan at all in place is not a good way to ensure they are provided for upon your passing.
The heartache, potential for conflict, and possibility of lengthy and messy probate litigation that can result from dying intestate is preventable, but requires proactive planning. Toward that end, Craft offers this brief and important advice: “An unmarried individual who would like to provide for their partner should ensure that their partner is (1) the co-owner or designated beneficiary of IRAs, insurance policies, and bank accounts, and/or (2) specifically named as a beneficiary under their Will.” Attorneys also remind us that creating a will takes on additional importance when children are involved:
If unmarried, the surviving parent would have no inherent interest in the decedent’s estate without a Will or trust outlining the same. This scenario could leave children (even minor children) as the sole beneficiaries of the decedent’s estate by virtue of New York State’s intestacy laws. In the event that a minor child is entitled to a portion of the decedent’s estate, additional steps (and additional expenses) are required to appoint someone (sometimes a stranger or entity) to hold onto that child’s interest for their benefit until they reach the age of majority. This process requires court intervention and oversight, and can often be avoided. By establishing a Will or trust-based plan, one can circumvent such a concern by either naming the surviving parent as a beneficiary or appointing someone to act as a fiduciary (i.e., to act in the best interest) for their minor child (or both!).
Designating an Executor
When you create a will, you will designate an executor to manage your affairs upon death. Absent a will, the court will appoint an administrator. Obviously, it’s much better to proactively appoint an executor and ensure your designee is armed with the information needed down the road. Needless to say, no one wants to find themself wading through shoe boxes and post-it notes to track down account information, digital assets, contacts, and so on, and doing so while grieving creates extra stress. When choosing an executor, ensure there is a solid understanding of the role–and time commitment required to fulfill it. Attorney Richard Humiston of Frantz Ward points out that executor follow through is essential for the smooth closure of an estate: “An effective Executor understands that their actions can have a significant impact on how quickly and accurately the estate is administered. This individual must be willing to be diligent in the identification and distribution of assets, and timely in their interaction with the Court.”
Good To Know: Executor and Administrator Bonds
Executors and administrators are fiduciaries and are legally obliged to protect the interests of the estate and its beneficiaries in accordance with state law. As a guarantee, courts often require a bond, known as probate, administrator or executor bonds. As a leading national provider of all types of fiduciary bonds, Colonial Surety makes it easy and efficient to obtain court required bonds. Just get a quote online, fill out the information, and enter a payment method. Print or e-file the bond from anywhere—even before leaving probate court or the law office.
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