If you die without a valid will in New York, you are said to have died intestate. For property that is in your name alone, the law — not a judge’s personal preference, and not a family’s informal agreement — decides who inherits.
Which property the statute covers
That statute applies to the probate estate: assets that do not already pass some other way. A jointly owned bank account, a house held as joint tenants with right of survivorship, or a life-insurance or retirement account with a beneficiary named on the form generally goes to the surviving co-owner or the named beneficiary. If no beneficiary is on file, or the beneficiary has already died, that asset may fall into the estate and then follow the intestacy rules.
An unmarried partner, a close friend, or a charity receives nothing under those rules unless that person or organization is already on the title or the beneficiary form. Intestacy has no exception for “the person who was supposed to get it.”
Who inherits under New York law
After debts, administration expenses, and reasonable funeral expenses are taken into account, New York divides what is left as follows.
If you are survived by a spouse and no issue — that is, no children or other direct descendants — the spouse takes the whole intestate estate. If you are survived by a spouse and by issue, the spouse takes $50,000 plus one-half of the rest, and the other half goes to the issue “by representation.” If you are survived by issue and no spouse, the issue take the whole estate, again by representation.
If there is no spouse and no issue, the estate goes to a surviving parent or parents. If there is no parent, it goes to the issue of the parents — your siblings, or their children if a sibling has already died — by representation. If there is no one in that group, the statute then looks to grandparents and their issue, with limits on how far out the family tree the law will go.
“By representation” is New York’s method for dividing a deceased child’s share among that child’s own children. The details can matter in a second marriage, in a family with children from different relationships, or when a child has died leaving grandchildren.
Who is appointed to settle the estate
Someone still has to be appointed by Surrogate’s Court to gather the assets, pay debts, and make the transfers. That person is called the administrator, and the court issues letters of administration. The statute sets an order of priority that generally begins with the surviving spouse, then children, then grandchildren, then a parent, then siblings, and then other eligible distributees. The person you would have chosen — or the person who is actually doing the day-to-day work — is not always the person with the legal right to be appointed.
A minor who inherits may not be able to take property in his or her own name. That can mean a guardianship of the child’s property and more court involvement.
For some smaller estates, a simpler voluntary-administration filing may be available when the decedent leaves personal property of $50,000 or less, not counting certain property the law sets aside for the family. That simplified procedure covers personal property only. It does not transfer an interest in New York real property. Owning a house or other real property in New York does not, by itself, prevent use of the procedure for the personal property, but transferring the real property typically requires a full probate or administration proceeding.
What a will can change
A will is how you make different choices than the statute makes for you. A funded trust can do some of the same work for assets placed in the trust during life. Even with a will, a surviving spouse may have rights under New York law if the will leaves the spouse less than the statute allows. That is a separate question from intestacy, and it is one reason a will should be reviewed after a marriage, a divorce, or the birth of a child.
If you do not have a will, or you are not sure the one you signed is still valid, Jordan M. Endler, P.C. in Islandia can talk through what New York law would do with your property and what documents would change that result. Call (631) 896-2211. He takes calls in the evenings and on weekends.
This article is general information about New York law, not legal advice, and does not create an attorney-client relationship.
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