“No Will” Probate Intestate Succession in New York

When a person dies without a will in New York, probate rules to intestate succession guide the distribution of asset to relative survivors. New York rules of intestate succession provide that the closest living family member surviving the deceased is entitled to transfer of assets from an estate. The law of intestate succession limits asset transfer to property that would customarily be assigned to beneficiaries by an estate during probate. This default provision allows for persons identified as family members such as spouses, followed by children, parents, and siblings to be justly enriched should no beneficiaries be named in a will.  


What is the Law of Intestacy?

In New York, the Law of Intestacy states that asset transfer from “the Decedent’s estate when there is no will” is accorded to “distributees” who are or surviving relatives. When surviving relatives include a spouse and children, New York Consolidated Laws, Estates, Powers, and Trusts Law mandates “the spouse inherits the first $50,000 plus half of the balance,” and “the children* inherit everything else” (EPTL § 4-1.1). If parents exist and no spouse or children, the parents retain 100% of the estate. Where siblings survive the deceased, and there are no spouse, children, or parents, probate law allocates the entire estate to the former.

New York requires a legal parent-child relationship to consider those parties as beneficiaries under the rules of intestacy. Transfer of property is subject to apportionment where more than one living child is awarded an estate. Adopted children receive the same consideration as natural born children in the apportionment calculus. Foster children or stepchildren, not legally adopted by a deceased parent are not considered surviving beneficiaries. Children born outside of wedlock receive the same intestate share as other children of the Decedent if the paternity of the father is established. Grandchildren will inherit the estate of a grandparent if their parent has died prior to the death of the Decedent.

Are There Assets Not Subject to Transfer?

There are some assets not passed by intestate succession under New York law such as life insurance proceeds; 401(k), IRAs and other retirement funds; securities managed by a transfer-on-death account; property owned in joint tenancy; and any property transferred from a living trust before the Decedent’s death. Foreign nationals, half relatives, and posthumous relatives are generally not given automatic intestate consideration for asset transfer during probate. Probate court can escheat property to state coffers should no surviving beneficiary meeting rules of intestacy exist.

Can I File a Petition as a Distributee?

The probate court will allow the “closest distributee” to file for administration of an estate. If the relative with the right to administer the estate declines to petition, a renunciation and waiver can be signed by that individual(s) to transfer those rights to the next surviving relative(s). Renunciation and waiver does not mean that giving up intestate share of the Decedent’s estate assets, only the right to administer the transfer of those assets.

For more information about New York rules of intestate succession, contact a licensed attorney at law specializing in probate matters. Ettinger Law Firm licensed attorneys at law specialists in estate law and can represent you in a “no will” case. Contact Ettinger Law Firm for consultation in an estate planning or litigation matter.

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