Who will inherit your property if you do not express your last will and testament? What is the New York intestacy law? In this article we tell you everything you need to know about the probate process when there is no valid will.
At Ortiz & Ortiz, we have experienced New York probate attorneys who are sure to be able to advise you on your case. Our attorneys have been serving the English and Spanish speaking community for over 30 years. Contact us today!
Everything you need to know about New York intestacy law in 2021
Starting to think about your will and who will inherit your things can bring up a lot of mixed feelings. You may still feel that you have a long time to live and that it is not yet time to think about it. However, it is best to be prepared for when that time comes.
That is why, below, we will discuss every detail of what happens when a person dies without a valid will in New York.
What is intestate succession?
When a person dies and does not leave a will or express the last will and testament, that person is said to die intestate. In contrast, testate succession is when the decedent leaves a will. In such a document, the deceased person instructs the court and the executor how to distribute the property, assets and estate. You can learn more about the difference between testate and intestate succession.
When there is no valid will, the courts must follow another guide: state law. That means that all of the decedent’s property, assets and property are to be distributed according to New York intestacy law. The latter is found in section 4-1.1 entitled “Decline and Distribution of a Decedent’s Estate”.
Who gets what when there is no will in New York?
New York intestacy law takes care of prioritizing who can be the administrator of the estate, as well as who will inherit it. Who gets what with respect to the deceased person’s belongings will depend on what living relatives the decedent has and what relationship they have with each of them. The direct family members who are entitled to a share of the estate when there is no will are called “distributees”.
This is how the decedent’s belongings are inherited in the absence of a will. This is how the order of priority works:
- If the decedent has a spouse but no children, it will be the spouse who inherits all the assets and property.
- If the decedent had children but no spouse, it is the children who inherit everything.
- When there is a spouse and children, the decedent’s spouse will inherit the first $50,000 plus one-half of the balance. The children inherit everything else equally divided.
- If the decedent has parents but no spouse or children, the parents will inherit equally all of the decedent’s assets and property.
- If the decedent has no parents, spouse or children, the siblings will inherit the property of the decedent in equal shares.
- If the decedent had children but they died before the decedent, the grandchildren can take the place of the decedent’s child.
- If the decedent has grandparents, but no spouse, children, parents and siblings, the estate is divided equally between the paternal and maternal grandparents.
- When the decedent has aunts and uncles but no spouse, children, parents, siblings or grandparents, the inheritance will be divided equally between the paternal and maternal aunts and uncles.
- If the deceased has only nieces and nephews, they will inherit everything in equal parts.
When the first level of priority to inherit is reached, the lower levels will not be used. In case the deceased has a grandfather and a niece, it will be the grandfather who will inherit the entire estate.
Spousal share in New York
The decedent’s spouse is in the first line of priority to receive the decedent’s estate. This means that if the decedent has no children or other living relatives, the spouse inherits all of the decedent’s assets. However, depending on what living relatives the decedent has at the time of death, the estate will be divided.
In the event the decedent has a spouse and children, the spouse will inherit the first $50,000 of the intestate property plus one-half of the balance.
Read more about this in our article spousal right of election in New York.
The share of the decedent’s children
In New York State, in order for the decedent’s children to inherit, there must be a legal relationship. While in most cases this is almost automatic, there are some cases where it is not so clear.
Here are some examples:
- Adopted children inherit like a biological child.
- In order for an adopted child or stepchild to inherit the decedent’s estate, they must have been legally adopted.
- Children born after the decedent’s death will inherit.
- When there are children born out of wedlock or also called non-marital children, they will inherit from a male decedent when paternity is established.
- Grandchildren will inherit only if their father, the child of the decedent, dies before the decedent’s death.
Other rules of New York intestacy law
When it comes to family there are several relationships that can cause confusion when discussing inheritance.
Some points to consider:
- Half-relatives: It is very common to have half siblings when only one parent is shared. If that is the case and if that shared parent dies, the half-sister or the half-brother has the same right to the parent’s estate as if they had both parents in common.
- Posthumous Relatives: Relatives who are conceived before the decedent dies, but are born after, inherit the same as if they had been born prior to death.
- Immigration Status: When inheriting intestate, it makes no difference whether or not the family members are citizens or lawfully present in the United States.
- Co-Tenant Convicted of Murder: A co-tenant convicted of murdering another co-tenant is not entitled to inherit money from the co-tenants’ bank account. That convicted co-tenant will only be entitled to the money that contributed to the account.
The process of probating an estate without a will in New York.
#1. Ask the court for a probate hearing
The purpose of a probate hearing is so that the court can determine how to distribute the decedent’s assets. In the request for a hearing, you must state who the “heirs at law” are. These are the people who should inherit the decedent’s estate when there is no will.
In order of priority who should inherit are:
- Surviving spouse.
- Children of the decedent. They can be adopted or stepchildren recognized before the law.
- In case there is no spouse or children, it will be the closest living relative. It starts with the parents, then siblings, grandchildren, grandparents, nieces and nephews, and so on.
#2. The hearing is held
A hearing is held to make sure that all the facts stated in the petition are correct. This is an instance for objections to be raised if any family members have objections. The court may also waive the hearing if all family members sign a waiver and agree that the facts stated are correct.
#3. An administrator is appointed
The probate court will appoint a person who will have the task of administering the probate process of the intestate estate. This person will be known as the personal representative or administrator of the decedent’s estate. The responsibilities and duties of the appointed administrator will be the same as those of the executor who is named through a will.
Who can be the administrator of the estate when there is no will?
If there is a will, it is the executor of estate who takes care of the estate and distributes the assets to the beneficiaries named by the decedent in the document. However, when the person dies without a will, it will be the closest living relative. In order of priority will come first the spouse of the deceased, then the children and so on. In case a relative does not want to administer the estate, they can sign a waiver.
Note: Also find out the difference between an executor and an administrator of the estate, as well as the difference between an executor and a trustee. And if you are thinking about making a will and appointing an executor, read our article on the New York letters of administration.
#4. The administrator is the one who determines the value of the estate
Whoever is appointed as administrator of the estate should keep track of all assets and property of the estate. The administrator must handle pending legal disputes and all claims against the estate. In addition, it should pay debts and taxes and any expenses owed.
Note: You may be interested in our article: How to find out if I owe debts in the United States. Also read our articles: can I go to jail for debts, what happens if I am sued and have no way to pay and what happens if I do not pay a promissory note.
#5. Final distribution and acceptance of the account is requested from the court.
After all debts and expenses of the estate have been paid, the court will proceed to approve the shares and distribution plan proposed by the appointed administrator.
The probate court will hold a hearing on the distribution petition. After the hearing, the court will issue an order discharging the remaining assets to the family members who will inherit them.
If the family members agree to the distribution and consent to the plan, the accounting hearing can be waived. And if anyone objects, a formal hearing with an official account must be held.
#6. The assets are distributed and the estate is closed.
When you have all the exemptions or the court order if a hearing has been held, the assets are distributed. The distribution will result in receipts and releases from family members. Once this step is completed, the estate is officially closed.
What assets pass through intestate succession?
The assets that are considered part of the estate for intestate succession purposes are the same assets that would have been part of a will. In other words, only the assets that the deceased person owns in name.
Some assets that are not affected by New York intestacy law:
- Property that has been transferred to a living trust.
- Life insurance proceeds. Read our article on what happens to life insurance without a beneficiary.
- Retirement account funds.
- Securities held in a transfer-on-death account.
- Property held in tenancy with another person.
All of these assets do not pass through intestate succession, as they will pass directly to the surviving joint tenant or beneficiary named by the decedent during the lifetime.
Dying without a valid New York Will
It is estimated that more than half of American adults do not have a will. When the deceased person has family, New York intestacy law seeks to act in the same manner in which the average person would distribute the estate. However, when a person dies without a will and has no living relatives who are easy to identify, then all the property, estate and assets will be held by the state until a family member is found.
In the event that no living family member is found, the state will keep everything the deceased person owned.
Reasons to have a will
- Uncertainty of who will administer your estate after your death. With a will, you can appoint an executor to administer your estate to ensure that your relatives receive the assets you wish to pass on to them.
- Potential conflicts between your relatives. By leaving a will, you will be able to express your last wishes and indicate which assets you want each of your loved ones to inherit. This will not only give you the possibility of financially securing your relatives, but you could also avoid conflicts by arguing that it is your will.
- Prevent the state from taking your property. In case you do not have a living relative, with a will you can make sure that your money is donated to a foundation or inherited to a friend.
- Orderly administration of your assets after your death. With a will you can leave everything in order.
- Appoint a guardian for minors. If you have minor children, the will can also be used to appoint a guardian.
What estate planning instruments are available?
A will is the most common estate planning instrument for after death. However, there are other valid instruments that can be very useful. Here are some of the most commonly used instruments.
- Power of attorney: through a power of attorney you will be able to confer a responsibility to a third party to perform certain actions. In general, it is used when a person reaches a certain age and needs someone to make decisions in medical, financial or legal matters. For a power of attorney to be valid, it must be drafted in a certain way and validated by a notary.
- Will: A will is a document where a person, the testator, stipulates a set of instructions about who gets what and who will manage the property and assets once it is gone. Having a will will allow you to have an orderly administration of all your assets and, in addition, make sure that they are distributed in the way you indicated.
- Revocable or irrevocable trust: The trust is a legal agreement between the creator or settlor and the trustee, who will be in charge of managing and distributing your assets among the previously designated beneficiaries. It can be revocable and irrevocable. The irrevocable trust is of a permanent nature, which means that the assets that enter the trust are beyond any control other than that of the trustee. On the other hand, the revocable trust is created by the settlor and is effective during its life as long as it is funded with assets.
Getting Legal Help When Dealing With Intestacy
Not having a will can bring a lot of headaches to your loved ones when you are gone. Having a will allows you to plan who will receive what from your assets and property. In addition, you will be able to designate who will administer and distribute everything among the beneficiaries.
At Ortiz & Ortiz we have experienced wills attorneys in New York who can help you on matters related to New York intestacy law today to plan your estate for when you are gone:
- Advice on how to make your will fit your needs and your last will.
- Drafting the document to be valid in any probate court.
- Help and guidance in the appointment of an executor of succession.
- Accompanying your family after you are gone.
Contact us today and let us know your case. Schedule an in-person consultation at our offices located in Queens and Manhattan. We can also provide virtual consultations in any of the five boroughs of New York City. Contact us!