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Understanding Intestacy in New York


Four men standing on all black, looking at a grave in a funeral.

The term for passing away without a will or any other estate planning documents in effect is known as dying intestate. The specifics of the law can vary from one state to another, but in general, it necessitates a judge to make determinations regarding the distribution of the deceased individual's assets.


Intestate succession is the legal process of distributing the assets and property of a deceased individual when they have not left behind a valid will, in accordance with the laws in the state where they resided. It's important to emphasize that a will is a crucial legal document that allows individuals to dictate how their estate should be managed and distributed after their passing, especially if they want to deviate from the state’s law. Without a will, the state takes control of these decisions. In New York, the intestate laws outline that the assets will be allocated to the closest surviving relatives of the deceased individual. However, this process is often more intricate than it may appear at first glance.



What Assets are Subject to Intestate Laws

Assets that are subject to intestate succession laws typically encompass those that would ordinarily be included in a will and subsequently go through the probate process. These are typically assets and property held solely in the name of the deceased individual. Conversely, assets with named beneficiaries or joint/co-owners generally do not fall under the purview of intestate succession laws because they pass automatically upon death. 


Here are some examples of assets that are not subject to intestate succession laws:


1. Life Insurance: Proceeds from life insurance policies are typically paid directly to the named beneficiaries and do not go through probate.


2. Property Held in a Living Trust: Assets placed in a living trust are distributed according to the terms of the trust document and are not subject to intestate succession.


3. Retirement Accounts (e.g., 401(k) or IRA): Retirement accounts typically have designated beneficiaries and are not subject to intestate laws.


4. Property Held in Joint Tenancy or Tenancy by the Entirety: When property is jointly owned with another person with rights of survivorship, it usually passes directly to the surviving co-owner.


5. Payable-on-Death Bank Accounts: These accounts have designated beneficiaries and bypass the probate process.


6. Securities in a Transfer-on-Death Account: Similar to payable-on-death accounts, these securities are transferred directly to named beneficiaries.


For all other assets subject to intestacy laws, the courts will oversee the distribution process until the closest family members and heirs, often referred to as distributees, are identified and determined as per the applicable intestate laws.


Who Will Inherit?

Intestate succession dictates the allocation of assets based on the degree of kinship with the deceased individual. In New York, cases where the decedent was married but had no offspring, the surviving spouse becomes the sole heir. If there is no spouse but children exist, they inherit the entire estate, sharing it equally among them. When both a spouse and children are present, the spouse receives an initial $50,000 plus half of the remaining assets, while the children divide the remaining half equally.


However, the situation can become more intense when an individual passes away without children or a surviving spouse. In such cases, the order of inheritance typically proceeds to the decedent's parents. If the parents are not alive, the estate may then be distributed among the decedent's siblings. Intestate succession essentially follows a hierarchy that moves up the family tree and down the nearest branches to allocate the decedent's estate to their closest living relatives.


Determining who qualifies as a "child" too can be challenging in some situations. Legally adopted children inherit on par with biological offspring, whereas stepchildren and foster children have no intestate inheritance rights unless they've undergone legal adoption. Children born out of wedlock or posthumously (even through artificial insemination, given consent within seven years of the death) can inherit under intestate laws if paternity is established.


In the absence of legal heirs, the state of New York assumes ownership of the estate. For a comprehensive understanding, you can refer to the full text of New York's intestate succession law.


Real Case Example

In an all too familiar scenario, a couple separated but didn't formalize their divorce through the courts. Tragically, when the husband passed away 20 years later, their legal status remained “married,” which meant the wife inherited 100% of his estate through intestacy laws. His siblings, expecting to inherit their brother’s home, were left with nothing.


This real-life example highlights the lasting consequences of failing to create an estate plan while separated from a spouse.   It's a stark reminder that the if you don’t plan, the state has a plan for you.  And the state’s legal intricacies can significantly impact your asset distribution. 


To shield family members from the burdensome probate process, or from having someone inherit who you would otherwise not want to receive a share, the best course of action is to establish a well-structured estate plan. This will ensure that you have a say in who receives your assets.  


By entrusting your estate planning needs to Law Office of Leslie Sultan, you gain a partner who understands the nuances of New York law, ensuring that your plan is not only legally sound but also reflective of your individual wishes. Our attorneys bring a wealth of experience in crafting wills, trusts, and other essential estate planning documents that provide clarity and peace of mind.  Feel free to schedule a free consultation.











About the Author

Attorney Leslie Sultan

Leslie has been practicing law since 2009 and is the host of the estate planning podcast 'Legacy Purse'. She has a long history of representing family members struggling to inherit property and/or wealth from deceased family members through the Probate Courts. Knowing how time-consuming and expensive the probate process is, Leslie takes great pride in helping her clients learn how to plan and protect their families during their lives so they can avoid the probate court process and save their loved ones that additional grief (and expense).





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