November 16

What Happens When You Die Without a Will in NY or How I Learned to Stop Worrying and Love the Idea of a Will

Luckily, and unluckily for some, the state of New York has devised a law that states exactly what happens to a person’s estate when they die without a will, or intestate as we lawyers like to call it. It is codified in EPTL § 4-1.1. It’s easy not to be familiar with this section of the law, because, let’s face it, we only die once.

It states, in part:

“Distribution shall then be as follows:
(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.”

Please note that there are six other distribution mandates when the above does not apply, but for now I just want to focus on this one. At first blush it seems to be ok. You probably would have left everything to your immediate family anyway right, so what’s the big deal?

Let’s specify some more:

You were a middle aged, middle/upper-income earning man with two children and a wife who you were lucky to have been living in beautiful Westchester, NY getting by working 10 hours a day to support your property taxes. You had your children later in your thirties because you had been so focused on work and then when 52 hits so does the big one- the big heart attack that is. You leave your wife with a twelve and fourteen year old, $450,000 in the bank and a mortgage to pay. And you never saw Paris.

So, by the letter of the law the first $50,000 goes to your wife. That’s seems reasonable. Then she takes half of the rest- $200,000. Ok, not bad.

And then what: your two children, minors at the time, inherit $200,00 equally? What? Why? Of course this raises more questions: why do I want my minor children inheriting money that my wife needs to raise them? You don’t. Then more practically: how does the Surrogate’s court actually give my minor children $100,000 each? The specifics can be summed up to one word: expensive. Oh and time consuming. So in a situation where your family needs money now and doesn’t want to spend any of it needlessly, they will be doing the opposite.

A Last Will and Testament in New York is, in my mind, an effective insurance policy that not only can direct your wishes and desires, but it can end up saving your family time and money when life is at its hardest.

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December 27

Name change petitions in Westchester County versus New York City

If you’ve ever had a small doubt about changing your name to your spouse’s surname when you get married, and you say to yourself, “well self, I can always just do it later,” I’d like to walk you through how that “later” part works out in Westchester County, NY.

First, let me compare it to New York City. In all five boroughs: Bronx, Manhattan, Queens, Brooklyn and Staten Island; you may simply go to this website:

https://lawhelpinteractive.org/login_form?template_id=template.2011-12-19.3223810918&set_language=en

Then you fill out the self guided form, pay your $65.00 and slowly, but surely you are on your way. Not bad.

In Westchester County, the process is three-fold, as follows:

I. Filing in the County Clerk’s Office

1) If born in the State of New York, you must gather your original or certified copy of Birth Certificate;
2) Provide the court with a Self-Addressed/Stamped Envelope;
3) Fill out the Name Change Order and Petition and bring the original along with a copy to the Clerk’s Office;
4) Next you may need to file a Request for Judicial Intervention form in triplicate (original and 2 copies;
5) And finally, for name changes in Supreme Court, there is a fee of $210, made payable to the local County Clerk.

II. Next is simple. You wait. Usually 6-12 weeks for the Order and Petition to be approved and signed by a judge.

III. Publication

1) Then publish a legal notice that your name has been changed in a local newspaper that will be on the Order.
2) This will cost another $50-$100 depending on the paper.

After an affidavit of publication is received from the local newspaper, the last step is to hand that back into the County Clerk’s office. I always pay the $5 each for 3 certified and stamped copies of the order so that my client can send them out to the various governmental agencies to actually change their name.

The take-away message is pretty clear in my book though. If you are thinking about taking your spouse’s surname, you may fill your new name into a box on the marriage certificate and submit it on your marriage day, or you can go through the steps listed above. That choice of course, is yours.

Please note there are some situations, serious situations, where these would not be the appropriate steps to changing a person or minor’s name. And although I’ve listed steps above to facilitate a name change, my only advice would be to contact an attorney before proceeding with any legal affair.

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