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. New York EPTL 4-1.1 governs distribution of assets for those who die without a Will. The statute 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” and the Petitioner’s right to act as Administrator. 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.”
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 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.
If you do not wish for the above family members to inherit your assets or if you wish to name the Executor, you need a Will. Intestacy laws have been known to impoverish the surviving spouse or spell the end of a family business. Speak with an experienced estate planning attorney to ensure that your estate plan fits your family.