Nobody likes to think about dying, but not thinking about it has never resulted in someone living forever. Given that fact, it is short-sighted not to consider preparing a will. Anyone dying without a will leaves the question of inheritance to the state.
New York, like every other state, has a law that sets out which close family members – termed next of kin – will inherit property if the deceased doesn't leave a will. It's a good idea for every New York resident to get an overview of the state's intestacy statute.
Understanding Intestacy Laws
Every adult of sound mind has the right to make a will. When an individual dies leaving a valid will, or "dying testate," the courts make sure that the deceased's property passes to the people or entities identified as beneficiaries. This usually happens as part of a court-supervised probate process.
On the other hand, if an individual fails to make a will, or if they make one but the will is invalid, they lose their right to determine what happens to their assets. Instead, these assets are distributed to the deceased's close family members according to the state's intestacy laws.
Each state has its own intestacy statute that sets out which relatives are the deceased's next of kin to inherit probate assets. Generally, the surviving spouse and children are first in line under New York law.
Probate Assets in New York
Not every asset that a deceased owns while they are alive pass through intestate succession if they die without a will in New York. The law applies only to probate assets, assets that would have passed under a valid will. Many kinds of assets would not pass under a will and thus aren't affected by intestate succession in New York.
For example, if the deceased, during their lifetime, owned real property with another person in joint tenancy or tenancy by the entirety, the right of survivorship applies. That means that the deceased's share of the property transfers automatically to the other owner or owners, outside of probate.
Likewise, any payable-on-death bank accounts pass to the named beneficiary outside of probate. Life insurance operates the same way, unless the named beneficiary is the estate. Funds in an IRA or other retirement account can also have named beneficiaries, and property that the deceased transferred during their lifetime to a living trust will pass as specified by the terms of the trust.
New York Intestate Succession: Spouse and Kids
Which relatives are first in line to take assets when a New York resident dies with no will? The distribution order is set out in the New York Consolidated Laws, Estates, Powers and Trusts Law - EPT Section 4-1.1 entitled "Descent and distribution of a decedent's estate."
New York state law lists surviving spouses and surviving children as the first "next of kin" in line to take a deceased's probate assets if there is no valid will. If there is a surviving spouse but no surviving children, the spouse receives everything. If there are surviving children but no surviving spouse, the children take the entire estate, which is divided evenly among them.
If a deceased leaves both a surviving spouse and children, the spouse inherits the first $50,000 and half of the remaining property. The children divide the rest evenly among them. When children survive the parent and no spouse exists, the children divide the estate evenly.
Which Children Count in New York?
For children to inherit from a deceased parent under the laws of intestacy, they must be considered the deceased's children under New York law. Sometimes this can be complicated. Children legally adopted by the deceased are considered the deceased's legal children. On the other hand, a deceased's biological children who were legally adopted by someone else are not.
There are a few other rules about children and intestate succession in New York:
- Children born to the deceased out of wedlock are considered their legal children if paternity has been acknowledged or determined by the court.
- Children conceived by the deceased, but born after their death, are considered the deceased's children if they were in utero within two years of the death or born within three years of it.
- Foster children and stepchildren will not receive a share of the estate unless the deceased had adopted them.
- Grandchildren only receive an intestate share if a grandchild's parent (the son or daughter of the deceased) did not survive the deceased.
Children Take by Representation
In New York, the intestacy law states that if an individual dies intestate and leaves surviving children, they take "by representation." This is important because it means that each child of the deceased is entitled to an equal share. And if a child does not survive the deceased, their share passes to their heirs.
For example, if the deceased had three children but no surviving spouse, each child would be entitled to one-third of the estate. If the estate is valued at $300,000, each child would be entitled to $100,000. If one of the children died before the deceased, leaving two children, each of these grandchildren would be entitled to one-half of their parent's share, or $50,000.
New York Intestate Succession: Parents and Siblings
What happens in a New York probate case if the deceased did not leave a surviving spouse or surviving children or grandchildren? After spouses and children, the next in the line of succession is grandparents, that is, the parents of the deceased. If one or both of the deceased's parents survives their death, and there is no spouse or kids, the parents inherit everything.
The next of kin after grandparents are siblings. That is, if an individual without a will dies and neither their spouse, children, grandchildren or parents survive them, any surviving siblings will inherit everything. If several survive, they split the estate equally.
Note that half siblings count as full siblings for intestate succession purposes. That is, if the deceased has a brother with whom they share a father but not a mother, that half-brother has the same right to intestate property as they would have if they had both parents in common. And when both paternal and maternal sides of relatives survive the deceased person, each side divides the estate evenly.
If There Are No Surviving Relatives
And if there are no surviving relatives? In that case, the state of New York assumes possession of the deceased’s estate.
- Findlaw: Intestate Succession Laws
- Findlaw: New York Estates, Powers, and Trusts Law Article 4, Part 1 (Rules Governing Intestate Succession)
- Findlaw: New York Consolidated Laws, Estates, Powers and Trusts Law - EPT Section 4-1.1
- Law Offices of Albert Goodwin: Intestacy Law in New York Explained With Examples
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.