Dying Without a Will in New York

Laws of Intestacy Succession in New York

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State Capitol of New York. Credit: VisionsofAmerica/Joe Sohm/Photodisc/Getty Images

OTE: State laws change frequently and the following information may not reflect recent changes in the laws. For current tax or legal advice, please consult with an accountant or an attorney since the information contained in this article is not tax or legal advice and is not a substitute for tax or legal advice.

When a New York resident dies without having made a Last Will and Testament, the intestacy succession laws found in the New York Estates, Powers & Trusts Laws will dictate who inherits the deceased person's probate estate.

Below is a summary of the New York intestacy succession laws in various situations.

Deceased Person is Survived by a Spouse and/or Descendants

Here is what will happen under the New York intestacy laws if the deceased person is survived by a spouse and/or descendants (children, grandchildren, great-grandchildren, etc.):

  • Survived by a spouse and descendants - In this case, the surviving spouse will inherit the first $50,000 of the deceased spouse's probate estate and the remaining balance of the probate estate will be distributed one-half (1/2) to the surviving spouse and one-half (1/2) to the deceased spouse's descendants, per stirpes.
  • Survived by a spouse and no descendants - In this case, the surviving spouse will inherit the deceased spouse's entire probate estate.
  • Survived by descendants and no spouse - In this case, the deceased person's descendants will inherit the entire probate estate, per stirpes.

    Deceased Person is Not Survived by a Spouse or Descendants

    Here is what will happen under the New York intestacy laws if the deceased person is not survived by a spouse or any descendants (children, grandchildren, great-grandchildren, etc.):

    • Survived by one or both parents - In this case, the parents will equally inherit the deceased person's probate estate if both are living, or if one of the parents is deceased then the surviving parent will inherit the entire probate estate.
    • Survived by brothers and/or sisters or descendants of brothers and/or sister and no parents - In this case the deceased person's brothers and/or sisters and the descendants of deceased brothers and/or sisters (nieces and nephews) will inherit the entire of the probate estate, per stirpes.
    • Not survived by parents, brothers, sisters, or descendants of brothers or sisters - In this case the probate estate will be divided so that one-half (1/2) will go to the deceased person's paternal family and the other half (1/2) will go to the deceased person's maternal family; provided that if there are no survivors on the paternal side of the family or no survivors on the maternal side of the family, then the entire probate estate will go to the other side of the deceased person's family.
    • Not survived by any family members - In the unlikely circumstance that the deceased person is not survived by any family members as described above, then the entire probate estate will escheat to the State of New York.

    What Will You Inherit From a New York Intestate Estate?

    So exactly what will you inherit if your relative dies without leaving a Last Will and Testament and the relative was a resident of New York or owned real estate located in New York?

    Even if you determine based on the information presented above that you are entitled to an intestate share of your relative's estate, you may very well not inherit anything. Why? Because your relative may have left all non-probate property or the debts your relative owed at the time of death may exceed the value of the probate estate which will make the estate insolvent.

    If you are not sure of your legal rights as an ​intestate heir in New York, then consult with a New York probate attorney to be sure.

    Will You Owe Taxes on Your New York Inheritance?

    New York is one of a handful of U.S. states that still collect an estate tax and these laws have changed in the past few years.  Aside from this, your inheritance may be subject to an estate tax at the federal level.  You may also owe income taxes (state and/or federal) on certain types of assets you inherit.

      Refer to the following articles to determine if you will owe any taxes on your New York inheritance: