The Basics of Intestate Distribution

A properly drafted and executed will allows you to do two things: (1) specify who should receive your property after your death; and (2) appoint a person to act on your behalf to distribute your property according to your wishes. If you pass away without a will, you are said to have died “intestate,” and the laws of intestacy are substituted for your judgment with respect to these matters.

The Laws of Intestacy

The laws of intestacy vary from state to state, but in general, the goal of intestacy is to distribute your estate in accordance with what most individuals would want. In New York, for example, the laws presume that you most likely would have left your property to your spouse and children. So, if you are survived by a spouse and no children, your entire estate goes to your spouse.[1] If you are survived by a spouse and children, $50,000 plus ½ of your estate goes to your spouse and the remainder (if any) is divided equally among your children.[2] The laws continue to branch outward, each time embracing more distant heirs such as grandparents, siblings, aunts, uncles, cousins, and first cousins once removed.

The laws of intestacy also determine who will act to distribute your property on your behalf. This individual is called the “executor” if appointed by a will or the “administrator” if appointed by intestacy. The executor/administrator fulfills a very important role because he or she is ultimately responsible for ensuring that your estate is properly distributed.  The executor/administrator will have the authority to access your bank accounts and other assets for this purpose.

If you create a will, you can name almost anyone to serve as executor. On the other hand, if you let intestacy govern, the law will make this determination on your behalf.  The laws specifying who can be named as the administrator try to approximate what most individuals would want. For example, in New York, if you are survived by a spouse, your spouse has priority (assuming your spouse is not an infant, incompetent or a felon).[3] If you are not survived by a spouse, your children have priority, followed by your grandchildren, and finally by other remote heirs.

Although these laws are a good start, they might not suit your specific circumstances. For example, you might not want your spouse to inherit your estate if you are separated but not yet divorced. You might not want your children to inherit their portion of your estate outright, particularly if they are very young or if the inheritance will disqualify them from receiving government benefits. You might want to disinherit certain heirs entirely. You might want to leave something for a close friend or domestic partner. You might want to leave specific items to specific individuals. Your children might be better suited to serve as executor than your spouse. Intestacy does not allow for any of these contingencies.

Conclusion

If you pass away without a will, the laws of intestacy determine how your estate is distributed and who has the authority to distribute it.   Although intestacy attempts to approximate a distribution that is acceptable to most people, it may not suit your specific needs.  If the laws of intestacy do not match your specific circumstances, you should consider creating a will that will govern the distribution of your estate.

[1] See N.Y. Est. Powers & Trusts Law § 4-1.1 (note that this is the law in New York as of the time of writing this entry; laws vary state to state).

[2] Id.

[3] See N.Y. Surr. Ct. Pro. Act §§ 1001 and 707.

Aging with Dignity Toolkit: Health Care Advance Directives

Planning is the key to aging with dignity.  In my “Aging with Dignity Toolkit,” you can learn about certain planning tools that you can use to control how your person and your property are managed as you age.

Following is a discussion of a documents classified as health care advance directives.  Many people are aware of the need to plan for their financial future.  Something that is equally as important (but perhaps less talked about) is the need to plan for your future healthcare needs.  Conversations about death, dying, and end-of-life care are uncomfortable and unpleasant, which is probably why most people avoid these conversations.  However, a small amount of planning can help ensure that your wishes surrounding your care are respected, even if you become unable to communicate those wishes on your own .

What Are Advance Directives?

Advance Directives are the tools that you use in order to direct others as to how to care for you in the event that you become unable to communicate your wishes.  There are two main types utilized in New York: (1) health care proxies; and (2) living wills.  Each is described further below; in general, it is a good idea have both a healthcare proxy and a living will in place.

Health Care Proxies

A health care proxy is an individual (or individuals) that you appoint to make decisions about your healthcare in the event that you are unable to make the decisions yourself.  You can appoint a health care proxy by filling out a form and having it signed and witnessed.

In some instances, you may want to appoint more than one proxy.  If you do so, it is usually a good idea to name one of the individuals as the “lead proxy” so that they have the final say in a decision if there is a dispute.  Remember — your proxy is supposed to make decisions in accordance with what you would want – not what the proxy wants.  Make sure your lead proxy is a person who is likely to know what you would want and likely to advocate for your wishes above his or her own wishes.

You can find a sample health care proxy form, along with instructions on how to complete the form here: https://www.health.ny.gov/forms/doh-1430.pdf

Living Wills

Living wills allow you to spell out specific wishes about your care.  For example, you can specify in a living will whether you would like to receive artificial hydration and nutrition, antibiotics, or other extraordinary measures.

You can find a sample living will here: http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=26506

What do I do with My Advance Directive After it is Completed?

After you have completed your Advanced Directive (health care proxy, living will, or both) you should sign the documents in the presence of two witnesses.  The witnesses must also sign the documents.  You should you provide a copies of the completed documents to all of your healthcare providers so that they can put them in your medical record.  You should also provide a copy of the documents to a few trusted loved ones.  Additionally, you should keep a copy in “wallet card” format on your person. If you want to revoke or modify the documents later, you will have to let everyone who has a copy know, so it’s a good idea to keep track of who you have given copies.

What if I Change my Mind?

Some people fear executing advance directives because they are worried the documents are permanent or will cause doctors to withhold treatment for routine medical care.  Remember, advance directives only come into play when you are unable to make decisions about your own healthcare.  If you are able to make your own decisions they will override the advance directives.  For example, if you say in your living will that you do not want antibiotics if you are in a vegetative state, this will not prevent your primary doctor from giving you antibiotics for a minor infection when you are otherwise healthy.  Further, advance directives can be freely revoked or modified by you at any time.  In fact, you should revisit these documents at regular intervals and change them as warranted by changes in your wishes.

Conclusion

Advance directives are an important part of planning for your future, regardless of your age.  Taking the time to create a health care proxy and living will can help you maintain autonomy and control over your medical care even if you become unable to express your healthcare wishes.