Intestate Succession in New York

by ECL Writer
Dividing Property In New York Divorce

Intestate succession in New York refers to the process by which a person’s assets are distributed if they die without a valid will. In this case, the state’s laws dictate how the assets will be distributed among the deceased person’s heirs. In New York, intestate succession laws are outlined in the state’s Estates, Powers, and Trusts (EPT) laws. Under these laws, a person’s assets will be distributed to their surviving spouse and children first. If the deceased person has no surviving spouse or children, the assets will be distributed to their parents or siblings. If there are no surviving relatives, the assets will go to the state.

Which Assets Pass by Intestate Succession

Intestate succession laws only apply to assets that pass through probate. Since many priceless assets are not subject to the probate process, intestate succession laws are not applicable.

Here are some examples:

  • the property you’ve transferred to a living trust
  • life insurance proceeds with a named beneficiary
  • funds in an IRA, 401(k), or another retirement account with a named beneficiary
  • securities held in a transfer-on-death account
  • real estate for which you have a transfer on the death deed
  • vehicles for which you have a transfer on death registration
  • payable-on-death bank accounts, or
  • the property you own with someone else in joint tenancy or tenancy in the entirety.

Regardless of whether you have a will or not, these assets will pass to the survivor co-owner or the beneficiary you designated. However, intestate succession may be used to transfer your property if you don’t have a will and none of the named beneficiaries are still living to receive it.

To learn more about these types of assets, go to the How to Avoid Probate or read about Avoiding Probate in New York.

Who Gets What in New York?

Who receives what in an intestate succession depends on whether you have living parents, children, or other close relatives when you pass away.

In the simplest terms:

If the Decedent has…then
a spouse (husband or wife) and no childrenthe spouse inherits everything
children* but no spousechildren 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 parentsthe 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.

The Spouse’s Share in New York

In New York, if a person dies without a will (intestate), the surviving spouse’s share of the estate is determined by the state’s intestate succession laws.

If the deceased person has surviving children, the surviving spouse will receive the first $50,000 of the estate and one-half of the remaining assets. The other half will be distributed among the surviving children.

If the deceased person does not have any surviving children, the surviving spouse will receive the entire estate.

It’s important to note that if the deceased person was married at the time of their death but was separated from their spouse, the surviving spouse will not receive any share of the estate unless the divorce proceedings were not yet finalized at the time of death.

In New York, the Surviving spouse has the right to elect against the will. If the decedent leaves a Will, but that Will does not provide for the surviving spouse, the spouse has the right to take against the Will, and take a share of the estate that is provided for in the state’s intestate succession laws, regardless of what the Will states.

Children’s Shares in New York

In New York, if a person dies without a will (intestate), the children’s share of the estate is determined by the state’s intestate succession laws. If the deceased person has surviving children, the children will share in the distribution of the estate.

If the deceased person has a surviving spouse, the surviving spouse will receive the first $50,000 of the estate and one-half of the remaining assets, while the children will receive the other half. If the deceased person does not have a surviving spouse, the children will receive the entire estate.

It’s important to note that in New York, the children’s share is calculated based on the number of children and not based on their ages or any other factor. Each child will receive an equal share of the estate, regardless of whether they are minors or adult.

If a child of the deceased person is deceased as well, their share will be distributed among their own children (the deceased person’s grandchildren), if any. If there are no grandchildren, the share will be distributed among the other surviving children.

Here are some things to keep in mind.

  • Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. New York Con. Laws § 7-4.117.
  • Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
  • Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won’t affect their intestate inheritance. N.Y. Estates, Powers & Trusts Law § 1-2.16.
  • Posthumous children. Children conceived by you but not born before your death will receive a share if the child was in utero within two years of your death or born within three years of it. N.Y. Estates, Powers & Trusts Law § 4-1.3.
  • Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they will receive a share of your estate if (1) you and the child’s mother signed an acknowledgment of paternity and filed it where your child’s birth certificate is registered, (2) you signed a document acknowledging paternity; you openly acknowledged the child as your own; (4) or a court has determined your paternity. N.Y. Estates, Powers & Trusts Law § 4-1.2.
  • Children born through artificial insemination. Your child born through artificial insemination will receive a share of your estate if you consented to the use of your genetic material to be used after your death and this consent was made within seven years of your death. N.Y. Estates, Powers & Trusts Law § 4-1.3.
  • Grandchildren. A grandchild will receive a share only if that grandchild’s parent (your son or daughter) is not alive to receive his or her share. N.Y. Estates, Powers & Trusts Law § 1-2.16.

If you want to read the law, New York Estates, Powers & Trusts Law § 4-1.2 covers parent-child relationships.

This can be a tricky area of the law, so if you have questions about your relationship with your parent or child, get help from an experienced attorney.

Will the State Get Your Property?

In New York, if a person dies without a will (intestate) and has no surviving relatives who are eligible to inherit under the state’s intestate succession laws, the state may claim the deceased person’s property. This is known as escheat.

The state will take possession of any property that is not specifically designated to pass to a particular beneficiary through a will, trust, or other legal instrument and that has no living heirs. This can include real property, personal property, bank accounts, investment accounts, life insurance, and retirement accounts.

Also, note that some assets, such as those held in joint tenancy with the right of survivorship, or assets that have a designated beneficiary, will not pass through intestate succession and will not be subject to escheat. These assets will pass directly to the surviving joint tenant or designated beneficiary, regardless of the intestate succession laws.

Also, some states have laws that allow for a certain percentage of the estate to go to the state if there are no heirs, this is not the case for New York.

Does a spouse automatically inherit everything in NYS?

In New York State, if a person dies without a will, their spouse may be entitled to a certain portion of their estate through the laws of intestacy. However, the specific laws and regulations regarding the inheritance and distribution of assets can vary depending on the circumstances of the case and the specific assets involved.

How long does probate take in NY with no will?

The length of time it takes to probate an estate in New York without a will, also known as “intestate,” can vary depending on a number of factors such as the complexity of the estate, the number of beneficiaries, and any disputes that may arise. Typically, the probate process can take several months to a year or more to complete. However, it could take longer if there are disputes or legal challenges to the distribution of assets. It’s always good to seek the advice of a probate lawyer to get a better understanding of the probate process and the time it may take in your specific case.

Other New York Intestate Succession Rules

Here are a few other things to know about New York’s intestacy laws.

  • Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. N.Y. Estates, Powers & Trusts Law § 4-1.1.
  • Posthumous relatives. Relatives conceived before — but born after — you die inherit as if they had been born while you were alive. N.Y. Estates, Powers & Trusts Law § 4-1.1.
  • Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
  • Joint tenant convicted of murder. One joint tenant who is convicted of murdering another joint tenant is not entitled to inherit any money in the joint tenants’ bank account. The convicted joint tenant is entitled only to any money that the convicted joint tenant contributed to the account. New York Estates, Powers & Trusts Law § 4-1.6.

You can find New York’s intestate succession law here: New York Estates, Powers & Trusts Law § § 4-1.1 to 4-1.6.

2 comments

Avatar of kevin Lehman
kevin Lehman August 15, 2023 - 4:02 pm

what if there are no surviving parents. no spouse and no children but there is one brother and two sisters, the brother is deceased . does the estate go only to the surviving siblings that are alive

Reply
Avatar of ECL
ECL August 17, 2023 - 1:16 pm

The siblings inherit everything.

Reply

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