1. What Is Intestacy?
  2. When Do Intestacy Laws Govern?
  3. What Is the Problem with Intestacy Laws?
  4. Courts Favor Testacy

What Is Intestacy?

Intestacy laws are default statutory rules for disposing assets after someone dies. New York’s intestacy laws are in Estates, Powers, and Trusts Law Article 4: Descent and Distribution of an Intestate Estate.

When Do Intestacy Laws Govern?

The laws of intestacy govern when someone dies owning assets and not dispose of them in a will, trust, or beneficiary designation.

Some people think that the laws of intestacy govern when someone dies without a will. This statement is incorrect as a generalization. It may or may not be true depending on the particular facts. For example, someone can make a complete disposition of assets through a revocable trust or through beneficiary designations. Further, even if someone dies with a will, partial intestacy is possible if the testator does not completely dispose of the residuary. See, e.g., In re Winburn’s Will, 265 N.Y. 366 (1934).

What Is the Problem with Intestacy Laws?

There is nothing inherently wrong with intestacy laws. But they can be detrimental when the default distribution scheme in these laws does not match what someone wants. For example, someone might want to donate assets to a charity, but the default rules do not make charitable distributions. Similarly, a parent with a spendthrift child might want to transfer assets in trust to benefit a child, instead of the outright transfer per the default rules.

Courts Favor Testacy

When someone dies with a will that is ambiguous, courts use a presumption that the will was written to avoid intestacy.