Question: My dad died. He was remarried and survived by a wife and two children from that marriage. I’m a non-marital child. There is no last will and testament. I think he owns some property in his own name but everything else is joint with his wife. What happens now? What rights do I have?
Answer: When someone dies without a last will and testament, a decedent’s estate is distributed by the law of intestacy. This simply means that the decedent’s property will be distributed according to New York State law. When a person dies without a last will and testament and has a spouse and children, both the spouse and the children are entitled to a portion of the decedent’s assets. The spouse of the decedent is entitled to the first $50,000 of the decedent’s probate intestate assets, plus one-half (1/2) of the remaining estate. The decedent’s children are entitled to share the remaining one-half (1/2) of the intestate estate.
The next logical question then is: what assets are subject to intestate distribution? Generally, they are any assets the decedent owned in solely the decedent’s name without any designated beneficiaries. Thus, any assets that were owned by the decedent and someone else are not assets subject to intestate distribution. As an example, if your father had a bank accounts jointly owned with his wife and a house solely owned his name that was sold for $550,000, the property distribution would be: his wife would automatically own the bank accounts, his wife would receive $300,000 from the sale of the house ($50,000 plus one half of the balance of the assets) and the you and your half-siblings would each receive approximately $83,000.
Once a person dies, in order to access or sell a decedent’s assets and property, an estate proceeding must be commenced in the Surrogate’s Court of the county where the decedent resided. The Court will appoint an administrator of the decedent’s estate to have authority to access and sell the decedent’s assets and property. The spouse or children could bring this proceeding, but the spouse would have priority of being appointed as the administrator.
Also, it is important to mention that as a non-martial child, you may have to prove that you are your father’s child in order to inherit from his estate. If your father didn’t sign your birth certificate, a Court approved paternity or a DNA test are some of the things that would be sufficient to establish paternity.
– Nancy Burner, Esq. & Roseanne Beovich, Esq.