Do all assets automatically go to spouse if a person dies without a will?

Question Details:My mother and her husband bought a home in Ashroken, LI. She contributed $350,000. She died and left no will. Her husband is implying that all assets go to spouse, even though she requested that her share of the house be divided for her children. Is he correct? Does a request list dictated to daughter, with witnesses present constitute a will?

Asked 5 years ago under Wills, Trusts, Probate | 4693 Views | More Legal Topics

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M.D., Member, California and New York Bar | FreeAdvice Contributing Attorney Answered 5 years ago

When a person dies without a Will they are said to have died "intestate".  That means that the distribution of their estate will be dictated by the intestacy laws of the state in which they died.  Under New York's intestacy statute, the first $50,000 goes to the surviving spouse and then one-half to said spouse and one-half to the children.

However, in the case of real estate, how title is held will control.  If it was as tenants-in-common then when one owner dies, their share passes to their estate.  It will then be distributed by the terms of their Will or intestacy laws (as explained above).  But if title is held as "joint tenants with right of survivorship", then in this instance, when one joint owner dies their share passes to the other joint owner(s) by operation of law.  It does not become an asset of the deceased owner's probate estate.

If the wording on the title is not clear as to how it is held, where owners are married, a joint tenancy with rights of survivorship is presumed by law.  Therefore, unless title to the property was specifically worded as "tenants in common", it was a joint tenancy.  I'm afraid that your mother's husband may be correct, he takes full title to the house.

As for the "request list" constituting a valid Will, that still would not effect ownership of the house.  However, if it complies with all of the requirements of a valid Will then it may apply to other assets.  At this point you need to consult with an attorney who specializes in this area of the law.

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