Dying Without a Last Will and Testament in New York

Intestate Succession in New York State

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Intestate succession laws dictate who inherits a deceased person's probate estate after the individual dies without having made a last will and testament. "Intestate" means "without a will."

These laws dictate a prescribed order of inheritance, typically based on kinship. All states, including New York, include these provisions in their statutes, although they can vary somewhat from state to state.

Who Opens the Estate?

It's a common misconception that dying without a will means that an estate does not have to be probated. The only major difference is that the decedent's assets will pass according to the state's intestate succession laws rather than according to wishes that have been set out in a last will and testament.

New York law states that a decedent's "closest distributee" should open an estate when a loved one dies without a will, and that individual would typically oversee the probate proceeding. This would be the deceased's spouse or the deceased's children if there is no living spouse.

A spouse or child who is reluctant to serve in this capacity can effectively "pass it on" by signing a renunciation or waiver and filing it with the court. The job would then fall to the next closest and willing relative in line.

Who Are Your Descendants?

Spouses and descendants are first in line to inherit from a New York intestate estate. Descendants include children, grandchildren, great-grandchildren—all those born in each generation, beginning with your immediate sons and daughters.

New York rules cover numerous circumstances:

  • Adopted children have the same inheritance rights as biological children.
  • Grandchildren will only inherit if their parent dies before the decedent. Likewise, great-grandchildren will only inherit if their parent and grandparent are deceased.
  • Children born outside of marriage are descendants if the deceased's paternity has been legally proven and established.
  • Children conceived during the decedent's lifetime, but born after the date of death, are descendants.
  • Foster children and stepchildren are not descendants unless they've been legally adopted.

Survived by a Spouse and/or Descendants

The surviving spouse inherits the deceased's entire probate estate under New York law if the decedent had no descendants.

The surviving spouse inherits $50,000 off the top of the deceased spouse's probate estate if the decedent was married and left one or more descendants. The remaining balance of the probate estate is then distributed one-half to the surviving spouse and one-half to the deceased spouse's descendants "per stirpes."

Per stirpes means that a beneficiary's share passes on to the next generation, should the beneficiary die before the decedent. That would be the case if your son were to predecease you while he had two children. Your grandchildren would inherit his share.

The deceased person's descendants will inherit the entire probate estate, again per stirpes, if the decedent is survived by descendants but no spouse.

If one of your beneficiaries were to pass away before you, distribution per capita ensures that the shares of that beneficiary will be equally divided between or among the remaining beneficiaries.

Not Survived by a Spouse or Descendants

New York intestacy laws branch out when a deceased person is not survived either by a spouse or any descendants. The decedent's parents will equally inherit the deceased person's probate estate if both are living. Otherwise, the surviving parent inherits the entire probate estate if the other parent is deceased.

The deceased person's siblings and their descendants—the decedent's nieces and nephews—inherit the entirety of the probate estate per stirpes if the decedent isn't survived by a spouse, descendants, or parents.

The probate estate is divided so that one-half goes to the deceased person's paternal family, and the other half goes to the maternal family when a decedent isn't survived by a spouse, descendants, parents, brothers, sisters, or descendants of brothers or sisters.

The entire probate estate goes to the other side of the deceased person's family if there are no survivors on the paternal side of the family or no survivors on the maternal side of the family.

The entire probate estate will "escheat," or transfer to the State of New York by default, in the unlikely circumstance that the deceased person is not survived by any family members.

Will You Inherit From a New York Intestate Estate?

You might not inherit anything, even if you determine that you're entitled to an intestate share of your New York relative's estate. Your relative might have left only non-probate property. These assets transfer to named beneficiaries outside of the probate process. Intestate succession applies only to probate assets.

Non-probate assets include those that pass directly to a named beneficiary by operation of law, so probate isn't necessary to change ownership from the name of the deceased into the name of a surviving heir. They include life insurance policies, retirement accounts, and real estate titled with rights of survivorship.

It's also possible that your relative owed significant debt at the time of death, so much that it exceeds the value of the probate assets. That makes the estate "insolvent." There's nothing left to transfer to heirs after paying the decedent's creditors at least a portion of what they're owed.

Consult with a New York estate planning attorney if you're unsure of your legal rights as an intestate heir.

Some Other Rules

Half-siblings are treated just the same as full siblings under New York's intestacy laws. Heirs are entitled to inherit in this state regardless of whether they're U.S. citizens or in the United States legally.

Taxes on Your New York Inheritance

New York is one of a dozen states (plus the District of Columbia) that collects an estate tax. Your inheritance might also be subject to an estate tax at the federal level, depending on its value, but that is generally only the case when an estate is literally worth millions and millions of dollars.

Any estate tax is due and payable to the taxing authority before bequests from the estate can be made. It can therefore diminish or even eliminate the assets that are available to heirs.

NOTE: State laws change frequently, and this information might not reflect recent changes. Please consult with an accountant or an attorney for current tax or legal advice, because the information contained in this article is not tax or legal advice, and it is not a substitute for tax or legal advice.