The New York Estates, Powers and Trusts Law, usually called the EPTL, governs estate planning, the distribution of property at death, and the administration of trusts in New York. It covers the substantive law of wills, the descent and distribution of an intestate estate, the rights of family members, the classification and creation of estates, and the rules governing trusts. It was enacted in 1966, and it is the framework within which every will, trust, and estate in this state is administered.
What the EPTL covers. The law is organized into parts. General provisions set out the fundamental principles and definitions. Rules governing dispositions set out the regulations that apply to transfers subject to the statute. The substantive law of wills sets out how a will must be made, executed, and revoked. Descent and distribution of an intestate estate sets out who inherits when there is no will. Family rights address the protections of a surviving spouse and children. The trust provisions govern the creation, administration, and termination of trusts, including charitable trusts and the supervision of their trustees. Perpetuities and accumulations limit how long property can be tied up.
With a will or without one. When a person dies, the distribution of property depends on whether there is a will.
A will is a document in which a person states how property is to be distributed after death. If there is a valid will, its instructions are followed. The process of proving the will and carrying it out is called probate.
If a person dies without a will, the person is said to have died intestate. The property is distributed under the rules of intestacy in the EPTL, which set out who inherits, in what order and in what shares, based on the surviving family members.
The difference is that a will lets the individual decide, and intestacy lets the statute decide.
Who inherits without a will. The rules of intestacy in New York work as follows.
If the deceased is survived by a spouse and children, the spouse inherits the first 50,000 dollars of the estate plus one half of the balance, and the children inherit the other half.
If the deceased is survived by a spouse but no children, the spouse inherits the entire estate.
If the deceased is survived by children but no spouse, the children inherit the entire estate.
If the deceased is survived by neither a spouse nor children, the estate passes to other relatives in the order the statute sets out, beginning with parents, then siblings, and so on. If no relative can be found, the property passes to the State of New York.
Dying without a will means that the statute decides who receives the property, and the result may be nothing like what the person would have chosen. A will is the way to make the choice yourself.
Probate estate and intestate estate. When a person dies with a will, the will is submitted to the Surrogate's Court for probate. Once the court finds the will valid, the executor named in the will administers the estate and distributes the property according to its terms. When a person dies without a will, the proceeding is called administration. The court appoints an administrator, usually the closest surviving relative, who administers the estate and distributes the property under the intestacy statute.
The stages of probate. Administering a probate estate in New York involves the following steps.
Filing the petition. The executor named in the will files a petition in the Surrogate's Court of the county where the deceased lived, together with the original will, a certified copy of the death certificate, and an estimate of the value of the estate. The persons who would inherit if there were no will, and the beneficiaries named in the will, are notified of the proceeding.
Collecting the property. Once appointed, the executor locates and inventories the deceased's property and transfers it into the estate.
Paying debts and taxes. The executor pays the deceased's debts and taxes, collects debts owed to the estate, and manages the assets while the estate is open.
Distributing the property. When the debts and taxes are paid, the executor distributes what remains to the beneficiaries according to the will.
The executor's commission. The executor is entitled to a commission for this work, calculated as a percentage of the value of the estate under a schedule set by statute.
Court supervision. The Surrogate's Court confirms that the will was properly executed and that the deceased had the capacity to make it, and it supervises the executor's handling of the estate, including through an accounting if one is requested.
How long it takes. A straightforward probate in Suffolk or Nassau County typically takes eight to twelve months. An estate with disputes, real estate to sell, or tax returns to file can take two years or more.
If you are planning your own estate or have been named executor of someone else's, call 516-928-5838 or use our contact form for a free thirty-minute consultation. Our estate planning page describes what we do.