Passing away without a Will is known as dying “intestate.” Many people mistakenly believe that if they die without a Will their assets go to the State. If there is a blood relative that can be located, the assets do not escheat to the State. They will be distributed according to New York statute, also known as the laws of intestacy. In New York, that law is found in Estates, Powers & Trusts Law § 4-1.1: Descent and distribution of a decedent’s estate. The “decedent” is another term for the person who died.

In intestacy, what happens to your assets depends on who your living relatives are and their relationship to you. The family members who are entitled to a share of the decedent’s estate when there is no will are called “distributees.” New York State law defines a distributee under EPTL § 1-2.5 as a “person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.”

New York EPTL 4-1.1 lays out a strict inheritance succession and order of priority regarding who can be appointed Administrator of the estate. The Administrator, like an Executor under a Will, collects the assets and distributes them according to the law.

An Administration proceeding is initiated by a petition in the Surrogate’s Court in the county where the decedent resided. The petition lays out who the known distributees are and the Petitioner’s right to act as Administrator.

Intestate Succession in New York

The following person(s) are distributees, and would inherit pursuant to the New York State intestacy statute:

If the decedent was married with children, $50,000 and half of the estate to the spouse, and the balance to the children or issue of any predeceased child;
A spouse and no children, all to the spouse;
Children and no spouse, to the children and issue of any predeceased child;
One or both parents, and no spouse or issue, to the surviving parent or parents;
If no spouse, issue or parents, to siblings or the children of any predeceased siblings;
If none of the above, half passes to the paternal grandparents, or to the children of the paternal grandparents (aunts and uncles) or children of predeceased aunts and uncles (first cousins) if both grandparents predeceased. The other half passes to the maternal relatives in the same manner. If there is no one surviving on either the paternal or maternal side, the entire estate passes to the other side; or
If none of the above, half to the children of the predeceased first cousins on the paternal side and half to the children of the predeceased first cousins on the maternal side. If there are no survivors on one side, the whole estate passes to the other side.

As you can see, the estate can become convoluted. Note that an adopted child is a distributee, a stepchild is not. A child conceived before death, but born after is a distributee. A half-sibling is also considered a distributee. A divorced spouse is not a distributee, but a separated spouse may be.

Everyone has next of kin, the question becomes how far our on the branches of the family tree you need to go in order to identify them.

If you do not have a will, in general, the “closest distributee” can file for administration or small estate, applying to be the administrator of the estate. This means that your spouse has a priority right over your children, your children have priority over your grandchildren, etc. If the relative with the priority right does not want to administer the estate, then they can sign a renunciation and waiver, allowing someone else to serve. This means only that they are giving up the work of serving as administrator, it does not mean that they are giving up their share of your estate.

Contact an Estate Planning Attorney for Help With Your Last Will and Testament

The default distribution set forth in New York’s statute may not align with the plan you had for your property. Intestacy laws have been known to impoverish the surviving spouse or spell the end of a family business. Creating a Last Will and Testament can help avoid the pitfalls and frustration that occur when a person dies without any estate plan in place. Speak with an experienced estate planning attorney to ensure that your estate plan fits your family.