When There Is No Will

When a person dies without leaving a Last Will and Testament, it's said that they died intestate. When a person dies intestate, that person's property is distributed according to the law. In New York, that law is found in EPTL 4-1.1.

Who gets what depends on who the living relatives are and their relationship to the Decedent, the person who died. The family members who are entitled to a share of the Decedent's estate when there is no will are called "distributees".

In the simplest terms:

If the Decedent has... then
a spouse (husband or wife) and no children the spouse inherits everything
children* but no spouse children inherit everything
spouse and children* the spouse inherits the first $50,000 plus half of the balance. The children* inherit everything else.
parents but no spouse and no children* the parents inherit everything
siblings (brothers or sisters) but no spouse, children*, or parents the siblings inherit everything
* If a child dies before the Decedent and had children of their own, then the Decedent would have grandchildren. Those grandchildren would step into the Decedent's child's place and inherit in place of the child.

About Decedent's Children
For children to inherit from their parents, New York State requires that there is legal parent-child relationship. In most cases this is not an issue but it's not always clear.

  • Adopted children will inherit just like a biological child.
  • Foster children and stepchildren will not inherit unless they were legally adopted.
  • Children born after the Decedent dies will inherit.
  • Children born outside of marriage, also called non-marital child, will inherit from a male Decedent if paternity is established
  • Grandchildren will inherit only if their parent (the Decedent's child) dies before the Decedent died.

If the Decedent has no family at all, then the property will go to New York State.


Who Can File An Estate Proceeding

If there is a Will, then the Executor named in the Will files for probate or a small estate in the Surrogate's Court in the county where the Decedent had their primary residence.

If there is no Will, then there is a rule for who can file for administration or a small estate. In general, the "closest distributee" can file for administration or small estate. This means that the Decedent's husband or wife has a prior right over the Decedent's children to file. But if the Decedent didn't have a living husband or wife, then the Decedent's children have equal rights to each other. If the relative with the prior right does not want to administer the estate, then they can sign a renunciation and waiver. In the same way, if relatives have equal rights (such as a Decedent's son and daughter) in an administration proceeding, then the Decedent's children sign waivers. This does not mean that they are giving up their share of the Decedent's estate.

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