“It’s a taboo conversation to have,” said Yoram Rodriguez, 57, a deputy director of youth services living in the Bronx. He’s talking about encouraging family members to make a will and estate plan. It’s been a year since his beloved mother, Eunice, 76, passed away after suffering from stage 4 melanoma cancer. She bought their four-bedroom family home in 1996. She did not have a will.
With the bustle of all the time spent living, it becomes easy to turn away from difficult conversations about a relative’s passing and the aftermath. This is particularly true for older Black and Brown homeowners who are statistically less likely to have a will or trust prepared in the event of their death, possibly leaving loved ones without an opportunity to inherit wealth across generations.
Nearly 70% of senior Black homeowners and 76% of senior Hispanic homeowners do not have a will or trust, compared to the same demographic of older white homeowners with children in the U.S., according to recent Urban Institute data. This could be for several personal reasons — some people don’t think they have enough assets or money to plan for, it’s a cultural taboo to discuss, or some seniors and their families just aren’t interested in accepting the inevitable, say legal experts.
“Estate planning is a crisis facing Black and Brown homeowners in Bed-Stuy that is too often swept under the rug, and too many lose generational wealth simply because they lack access to clear information and affordable legal support,” said Councilmember Chi Osse in a statement.
“I would say the closer we got to realizing that it was terminal, we talked more about it, but by that time, I don’t know. I think my brother [and I were] just so caught up in just trying to take care of her on a day-to-day,” said Rodriguez.
When you don’t have a will
In New York State, individuals and families go to Surrogate’s Court when someone dies. When a person dies without a will, or “intestate,” the families go to the administration department. This means that if the decedent had less than $50,000 in personal property, voluntary administration can be filed. If not, the “distributees,” or heirs who are entitled to a share of the deceased person’s property, have to go through a costly and lengthy “administration proceeding.”
“At worst, people could lose family property to unpaid taxes [or] unpaid mortgages, and potentially a shot at building generational wealth,” said State Assemblywoman Latrice Walker. “We must have a plan.”
Rodriguez and his brother currently have a “letter of administration” from the courts, which allows them to control their mother’s estate and the eventual sale of her house. His father was technically still married to his mother at the time of her death, but they were separated and he waived his rights to a share without a fight. His brother, who lived in the home with their mother before she died, was surprised that his name wasn’t on the deed. Luckily, his family are all on the same page and have opted not to be in conflict over the house in court. Legal experts lament that some of the worst infighting among families can be over real estate.
His mother’s hospice and general care was made easier by the fact that she was organized and a very good steward of her bills, said Rodriguez. He was added to her account to make payments on her mortgage and her single credit card debt was forgiven upon her death.
In the experience of Casey Lee, a staff attorney for the Legal Aid Society (LAS), many homeowners in Black and Brown neighborhoods are cash-poor. More than 60% of older Black and Hispanic homeowners without wills don’t have $500 in “liquid wealth,” which includes assets, checking accounts, savings accounts, money market funds, stocks, and stock mutual funds, according to the Urban Institute. This makes it harder for some homeowners to handle the costs to create a will. More often than not, the biggest barrier to will-making for Black and Brown families is money and access to legal services to hire an attorney.
“There are financial predators all over … lying in wait to take people’s homes, either through fraud, deception, tax lien sales, or other means. We can’t allow our people to contribute to our own financial demise,” said Walker. “We have to keep grandma’s house in the family and out of the hands of greedy gentrifiers who will repurpose it and push people who look like us out of our neighborhoods.”
Rodriguez’s father recommended him to a lawyer to deal with the administration proceedings and file their paperwork. He was charged about $3,500. Their letter from the court comes with a stipulation that requires another $2,000 to be lifted. That’s in addition to keeping up with house payments and fees, or he risked losing his mom’s house to foreclosure from the bank. “It’s difficult for the average person who’s not litigious, [and] if you don’t have that kind of money just lying around, it’s not cheap,” he said.
When you do have a will
When a person dies with a will, or “testate,” their families go to the state probate court in the county where they lived. Probate is the process of proving that the will is legally valid and appointing an executor from the will for the estate. The executor can then file the will, a death certificate, any related fees, and a probate petition that lists all the heirs. Distributees and beneficiaries have to be notified of the death and their rights, even if they consent to giving up their share. If family members don’t sign a waiver, they have to be “cited.” In New York, the house or assets would go to the next of kin, including half-siblings and second cousins.
“Estate planning isn’t really about having wealth,” said Lola Waterman, a New York City Civil Court Judge. “It’s more about protecting what you do have, whether it’s a small home, whether it’s a savings account, an IRA account. It’s about protecting what you have and making sure that the people you want to get it after you’re no longer here actually inherit it.”
Josephina Oluwanifise, a member of the Center for NYC Neighborhoods’ (CNYCN) Black Homeownership Project team, said many people are unaware of the free legal services and assistance available to them as homeowners.
“The system of homeownership as a policy could be such a major way people can build wealth, [although] the fact [is] that it’s so elusive and precarious for Black homeowners,” said Sabrina Bazile, CNYCN’s senior program manager. “If we don’t protect, if we don’t have these programs, like free estate planning and reaching out to Black homeowners … we’re at risk of continuing to see the loss of more Black people out of New York, as we’ve been seeing over the past 20 years.”
What are the options?
When it comes to will-making, one size doesn’t fit all. Many of the legal experts the AmNews contacted suggested that the best way to get started with the process is to find a licensed New York attorney through the state, city, or county bar associations.
“There are bar associations that have pro bono programs. It’s very possible that through one of those, they might be able to get assistance with putting together a basic set of plan documents,” said Mindy Stern, a partner at the Schwartz Sladkus Reich Greenberg Atlas (SSRGA) law firm.
If a person isn’t interested in getting a lawyer and wants to fill out and file the necessary forms themselves online using a free website like RocketLawyer.com, it can be done. However, legal experts advise that online wills have some serious downsides if not thoroughly done to the letter of the state law. They strongly suggest signing the will in front of two informed witnesses who can attest to a person’s mental state, and to include a “residuary clause” or a catch-all statement in case anything is missed. People don’t always follow through and make sure that signing the documents is in accordance with the state law with an online will, resulting in issues during probate.
“There’s nothing terribly wrong that I’ve seen or abhorrent about an online will,” said Lee. “[However], they’re not custom and so I think the problem is you don’t know what you don’t know. If you have a weird quirk about your family, you’re not getting a lawyer to advise you on how best to deal with that.”
“In my opinion, it’s pennywise and pound-foolish not to make sure that it’s being done with a licensed New York attorney who can make sure all of that happens,” said Stern.
Another good option is to open a living trust or a revocable trust. A will is technically not “a legally enforceable document that anybody can do anything with” until it’s admitted to probate in court and the executor is appointed. A revocable trust can name a successor trustee with all the assets already sorted, skipping court altogether. “That is something that we do recommend more and more to clients — that they consider doing because it avoids the time and expense and delay of probate,” said Stern.
Lastly, there is an option to rely on a Transfer on Death Deed (TODD), which allows a homeowner to “record a deed” while alive, under the state Real Property Actions and Proceeding Law (RPAPL) or 993 Uniform Partition of Heirs Property Act, and the Heirs Property Protection and Deed Theft Prevention Act of 2024. “The private bar hates these so much. They call these the ‘poor man’s will,’ which I think is offensive,” said Lee.
CNYCN’s General Counsel K. Scott Kohanowski worked on getting the legislation passed in a state budget bill last year to address the prevalent issue of deed theft in Black and Brown communities. TODD anticipates potential deed theft and makes it more difficult for scammers to fraudulently transfer a property. It also makes it easier to track and invalidate fraudulent documents, and it can bypass probate in court, allowing for a quicker transfer to the designated beneficiary.
Legal experts advised that putting a property owner’s children or a trusted person on the deed as joint owner(s) also would help with the process. They also suggest that people look into advanced planning to designate a healthcare proxy, create a living will, and name a trusted person as power of attorney who can make decisions, pay bills, and access bank accounts in case of an emergency.
“I think most people have the misperception that estate planning is for older adults or for the very wealthy. We have to change the narrative. Estate planning should begin as early as age 18. Your plan can grow and evolve as you get older and your financial situation matures,” said Walker.
The NYC Bar Association can be reached at 917-818-4684 from Monday–Friday, 8:30 a.m.–5:30 p.m. EST. Para español, llame al 212-626-7374 ($35 initial consultation fee).
If you are interested in advice about setting up a will, call Legal Aid Society’s Access to Benefits (A2B) Helpline at 888-663-6880 from Monday through Friday, 10 a.m.–3 p.m., or call CNYCN’s homeowner hub at 646-786-0888.
The New York State Unified Court System has information about the legal process and free forms for when someone dies at NYCourts.gov/CourtHelp/whensomeonedies. Other advance planning forms for a living will, a healthcare proxy, and naming a legal guardian when a person no longer has capacity can be found at these links.
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