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do I inherit by default?

Discussion in 'Estate Planning, Creating Wills & Trusts' started by the bookwerm, Apr 17, 2020.

  1. the bookwerm

    the bookwerm Law Topic Starter New Member

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    My brother lives in NY state and is getting old, and wants to leave everything to me (only living relative) when he dies.

    Does he have to make out some kind of a will? Or trust? Or do I inherit by default? Or does he have to leave a note on the table?

    I don’t have any experience with these things.

    Any information is appreciated. Thank you in advance.
  2. Zigner

    Zigner Well-Known Member

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    Even if you inherit "by default" (through the NY laws relating to intestate succession), it would still be better for your brother to do some actual estate planning. He should consult with an estate planning professional.

    Having said that, I understand that it's a difficult thing to do currently. Perhaps he can find a pro who will consult with him through videoconferencing...
  3. zddoodah

    zddoodah Well-Known Member

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    A note on the table would be meaningless unless it meets the requirements of a holographic will under NY law (assuming NY allows holographic wills).

    No, your brother does not "have to" do any estate planning.

    If he dies and does not have a will and has not made other appropriate arrangements for the disposition of his assets and payment of debts upon his death, then his assets (if any remain after payment of his debts) would be distributed in accordance with NY's intestate succession laws. If your brother is not survived by a spouse, any issue (children, grandchildren, etc.) or parents, then his siblings would be next in line. If you're the only sibling, then you would get the entire net estate.

    Does your brother own real estate or have any substantial assets?
  4. adjusterjack

    adjusterjack Super Moderator

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    He should.

    2018 New York Laws :: EPT - Estates, Powers and Trusts :: Article 3 - Substantive Law of Wills :: Part 2 - Execution of Wills :: 3-2.1 - Execution and Attestation of Wills; Formal Requirements

    Not required. But, depending on the extent of his assets, could be a good idea.

    Even if you inherit under intestacy, you would still likely have to probate his estate through the court. In NY even a small estate, which requires less formal procedure, is still required to go through the Surrogate Court process.

    Too many ways that can go wrong. However, a will doesn't necessarily have to be typed up by a lawyer to be valid. He can handwrite it but it will have to be signed and witnessed just as if it were typed and if his estate is small, he can find NY will samples on the internet and, at the very least, modify one for his situation.

    If he's concerned about the cost of estate planning, many lawyers do simple wills for a few hundred dollars.

    There's really no excuse for not having one. And the lack of one could be quite costly to you if complications arise. Encourage him to make one.
  5. welkin

    welkin Active Member

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    There are simple alternatives to writing a will or creating a trust for transfer of assets upon death. Your brother can name you as the beneficiary to any bank, brokerage, or pension accounts by filling out the proper paperwork with whatever institution holds the account.

    Those accounts don't have to go through probate. They are transferred upon death to the beneficiary. You provide a death certificate and your identification to the institution either in person or by mail and the assets are transferred to you.

    The benefit of naming a beneficiary is that since it is transferred outside of probate, if the estate is insolvent, those assets cannot be used to settle the debts of the estate unless you choose to use them.

    Real estate is not that simple. Some states have a transfer upon death deed but Connecticut is not one of them. So if your brother owns real property, he will have to will that to you or create a trust, or have you go through intestate succession probate to get the property.

    If the estate is insolvent (mortgage, taxes, and other debts) you would have to sell the property or make good on the debts from outside of the estate.
    army judge likes this.

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