New York Intestacy Law – Everything You Need To know

by ECL Writer
Filing For Sole Custody In New York

When a person passes away without a valid will, their estate is distributed according to the laws of intestacy. In New York, intestacy law determines how a person’s assets are distributed among their heirs if they die without a will. This can be a complex and confusing process, and it is important to understand the rules and regulations of intestacy law in New York. In this article, will explore the basics of New York intestacy law, including who inherits, how assets are distributed, and what happens if there are no living heirs. Whether you are planning your own estate or dealing with the estate of a loved one, understanding the intricacies of New York intestacy law can help you navigate this difficult and emotional time with greater ease and confidence.

What Is The New York Intestacy Law

Intestacy laws, also known as laws of descent and distribution, are the rules that govern how an individual’s assets are distributed in the event of their death if they have not left a valid will or trust. New York intestacy laws specify who is entitled to receive the decedent’s property when they die without a will.

The New York intestacy laws are outlined in the New York Estates, Powers, and Trusts Law (EPTL). The EPTL provides that the distribution of the decedent’s property will be governed by the relationship between the decedent and the potential heirs. The EPTL sets forth different rules for different situations, depending on marital status, family relationships, and the presence of children.

If a person dies without a will in New York and is survived by a spouse but no children, the spouse is entitled to the entire estate. If the decedent is survived by a spouse and children, the spouse will receive the first $50,000 of the estate, plus half of the remaining balance, and the children will receive the other half. If the decedent is survived by children but no spouse, the children will inherit the entire estate.

If the decedent is unmarried and has no children, the estate will go to the decedent’s parents if both are living. If only one parent is living, the estate will go to the surviving parent. If the decedent has no surviving parents, the estate will be divided among the decedent’s siblings. If there are no surviving siblings, the estate will be distributed to the decedent’s nieces and nephews.

In cases where there are no living heirs, the decedent’s estate will escheat to the state of New York. The state will then use the assets to fund government programs or other public purposes.

It is essential to note that the New York intestacy laws do not take into account the decedent’s wishes or the specific needs of their family members. Therefore, it is always recommended that individuals have a valid will or trust in place to ensure that their assets are distributed according to their desires.

Furthermore, it is crucial to understand that some assets, such as life insurance policies, retirement accounts, and jointly owned property, may not be subject to intestacy laws. These assets will pass directly to the named beneficiaries or surviving joint owners, regardless of the provisions in the will or intestacy laws.

In addition, if the decedent had any outstanding debts or taxes, those obligations must be paid before the remaining assets can be distributed to the heirs. In some cases, it may be necessary to sell assets to satisfy outstanding debts and obligations.

Which Assets Pass by Intestate Succession

Intestate succession laws only apply to assets that pass through probate. As many priceless assets are not subject to the probate process, intestate succession laws are not applicable. These are a few instances:

  • the property you’ve transferred to a living trust
  • life insurance proceeds with a named beneficiary
  • funds in an IRA, 401(k), or other retirement accounts 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. Yet, 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.

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. This is a brief summary:

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.

About Decedent’s Children

In New York, your children will inherit a “intestate share” of your assets if you pass away without making a will. Depending on how many kids you have and whether or not you’re married, each child’s portion will vary in amount. (Refer to the top table.)

Children must be legally regarded as your children by the state of New York in order for them to inherit from you under the intestacy statutes. This is not a complex issue for a lot of families. But sometimes it’s not obvious. These are a few things to remember.

  • 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.

Get advice from an expert lawyer if you have questions about your relationship to your parent or kid as this area of the law can be complicated.

The Spouse’s Share in New York

If you are married and pass away in New York without making a will, your spouse’s inheritance will rely on whether you have surviving descendants, such as children, grandchildren, or great-grandchildren. If you don’t, your spouse will receive the first $50,000 of your intestate assets in addition to half of the remaining assets.

Example: Joe and Rose have two grown children. Joe is married to Rose. Joe and Rose jointly maintain a sizable bank account, and Joe purchased life insurance with Rose as the beneficiary. Rose inherits the bank account and receives the life insurance policy payouts after Joe passes away; these items are not included in the estate. Joe also owns additional property worth $350,000 that would have been transferred through a will. Rose receives a share of the property valued at $200,000, or $50,000 plus the remaining $150,000. The remaining $150,000 was distributed between the two kids.

Will the State Get Your Property?

If you die without a will or any other estate planning documents in place, your property will be distributed according to your state’s intestacy laws. Intestacy laws are the default laws that determine how a person’s assets will be distributed if they die without a will or trust.

In some cases, if you die without any living heirs or named beneficiaries, your property may escheat to the state. Escheat is a legal term that refers to the transfer of property to the state when there are no living heirs or beneficiaries to inherit the property.

However, it’s important to note that the state only receives property through escheat as a last resort. In most cases, there will be surviving heirs who are entitled to inherit the property.

Under intestacy laws, the distribution of property is determined based on the decedent’s family relationships. The rules can be complex and vary from state to state. In general, a surviving spouse, children, parents, siblings, or other close relatives may be entitled to inherit the decedent’s property.

It’s important to understand that if you die without a will or trust, your property may not be distributed in the way you would have wanted. Without a valid estate plan, your wishes are not taken into account, and your property may be distributed to relatives that you may not have wanted to receive it.

To avoid this, it’s essential to create a comprehensive estate plan that reflects your wishes and provides for the efficient distribution of your assets after you die. By working with an experienced estate planning attorney, you can create a plan that protects your property and ensures that it passes to the individuals or organizations you choose.

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