Intestate succession In New York - Who inherits when there is no will?

What happens if your loved one dies without a will?  

First of all, you’re not alone. In fact, the majority of probate cases do not have a will. We can help you through this process!

When your loved one dies without a will, or if the will is deemed invalid by the court, you, or the intended legal representative, must open an estate  and complete probate, the process of court-supervised distribution of the assets of the deceased. The process the court uses when there is no will is called “intestate succession,” which simply translates to "no will estate."

Read: More about the probate process, and how to complete without an attorney.

What is intestate succession?

Under intestate succession, state law determines who gets what when a family member dies without a valid will. Since a will is a legal document that gives instructions to the court and the executor on how the deceased wants their property and other assets distributed, without a will, courts must follow some other guide on how to distribute assets. State law is your guide. 

Fortunately, the process is essentially the same for intestate probate. You will generally use the same probate forms as someone who is administering an estate with a will. Since intestate laws vary by state, there are some key details you should know about laws in the State of New York. We’ll explain some of the major differences below. 

Who inherits when there is no will in New York State?

New York intestate succession laws prioritize both who can be the administrator  and who will inherit from an intestate estate. In simple terms, the "who gets what" order depends on which close relatives are still alive when you or your loved one passes away. The person who inherits depends on the level of priority, the surviving family member(s) with the highest priority inherit and no other family with a lower priority will inherit. Let's break it down below. 

1. Surviving Spouse (but no children)

When there is a surviving spouse alone, the spouse inherits the entire estate.

2. Children (but no spouse)

Children inherit the entire estate in equal shares

3. Spouse and Children

  • Spouse inherits the first $50,000 of the estate, plus 1/2 of the balance; and
  • Children inherit the remainder of the estate in equal shares

4. Parents (but no spouse or children)

Parents inherit the entire estate in equal shares

5. Siblings (but no spouse, children, or parents)

Siblings inherit the entire estate in equal shares

6. Grand Parents (but no spouse, children, parents nor siblings)

Estate is split among paternal and maternal grandparents

7. Aunts & Uncles (but no spouse, children, parents, siblings nor grandparents)

Estate is split among paternal and maternal aunts and uncles in equal shares

8. Nieces & Nephews  (but no spouse, children, parents, siblings, grandparents nor aunts & Uncles)

Note: Once you get to the first surviving "level of priority" no further down level priority levels inherit.  Example: If there is only a surviving grandparent and a niece, only the grandparent will inherit.

This list is not exhaustive of all scenarios but is meant to serve as a guide for some of the common scenarios.

 Now let's look at the probate process, what does the process look like from a 30,000-foot view? 

The process of probating an estate without a will in New York State

Step 1. Petition the court for a probate hearing.

The state probate court will hold hearings on a petition for probate in order to determine how to distribute the assets of the deceased.  In the petition, you list who the “heirs-at-law” are. These are the persons who should legally inherit when there is no will. The order of priority for inheritance is (1) surviving spouse, (2) children, and (3) if no spouse or children, then the closest next of kin starting with parents. Below you will find a more detailed list.  Note that the priority of who should be in charge of the estate (administrator) is the same as who inherits.    

Step 2. A hearing is held.

A hearing is held to make sure all of the facts in the petition are correct and if any family member has objections, they have the opportunity to state them. If all family members sign a waiver and consent, it is customary for the court to waive the hearing.

Step 3. An administrator is appointed.

The probate court will appoint a person to manage the probate process for an intestate estate, also known as a personal representative or administrator, which really just means the deceased’s closest family member. The personal representative appointed by the court has the same responsibilities and duties as an executor named in a will. 

Step 4. The administrator determines the value of the estate.

They gather the remaining assets, handle outstanding legal disputes and claims against the estate, pay debts and taxes, and manage any other expenses owed by the estate. 

Step 5. Petition the court for final distribution and acceptance of account.

Once all the debts and expenses of the estate are paid you can now ask the court to approve your actions and your distribution plan. The probate court will hold a hearing on the petition for final distribution and account and then issues an order to discharge the remaining assets to the family members.  As in the prior hearings, if family members all sign waivers and consent an official hearing and accounting can be waived.  If anyone objects, then a formal hearing will be held and an official account will be required.  

Step 6. Distribute assets and close the estate.

Once you have all the waivers or the order from court (if a hearing was held) you can then distribute the assets, obtain receipts and releases from family members and officially close the estate. 

Learn More: How to probate a will - estate online without an attorney

Can the State of New York take my family member’s property if there is no will? 

If a person dies without a will and has no easily identifiable living family members whatsoever, then the property would go on administrative hold by the state until such family members are found. Though, as it might seem, it's rare that a person would not have a single living blood relative. 


Other New York State succession laws 

Here are a few more things you should know about New York State's intestacy laws.

Parent-Child Relationship

Children, as defined by New York State Inheritance Law, requires a legal parent-child relationship, which seems obvious for the family members involved. However, it becomes less clear to a court-appointed judge. In any case, here's what state law has determined:  

  • Adopted Children are legally considered the same as biological children 
  • Foster Children and stepchildren do not have inheritance rights unless they were legally adopted by the deceased
  • Posthumous Children, or children conceived prior to but born after the person passes, will inherit the assets as if they had been born while the deceased was alive
  • Non-Marital Children or children born outside of marriage, will inherit from a deceased parent if paternity/maternity or legal agreement is established
  • Grandchildren inherit the deceased's estate only if their parent (the deceased’s child) died prior to the deceased’s death

Other Family Members

  • Half-Siblings. In New York State, half-siblings (people who share only one parent ) inherit as if they were full-blood relatives.    
  • Posthumous Family. Similarly to posthumous children, relatives conceived prior to but born after the person passes will inherit the deceased’s assets as if they had been born while the deceased was alive.
  • U.S. Citizenship. Family members will inherit your estate whether or not they are American citizens or have legal immigration status in the United States.

Some assets DO NOT pass-through probate, which ones are they? 

This part is important. Only assets that the deceased person owns entirely alone (or only in their name) and would have passed through a will if there was one, are affected by intestate succession laws. 

A few types of assets that do not pass through intestate are things like life insurance proceeds, 401(k), or jointly owned property. In most cases, the deceased already chose a beneficiary for these types of assets, and so they will pass to the survivor regardless of if a will exists or not. 

Learn More: What assets go through probate

Are there any exceptions to intestate laws? 

The purpose of intestate succession statutes is to distribute the deceased’s wealth in a manner that closely represents how the average person would have designed his or her estate plan, had that person written a will. However, this default can differ dramatically from what the person really would have wanted. Even where it is known what the person intended, no exceptions are made where no valid will exists. Nor are there any exceptions made based on need or special circumstances.