Who Would Inherit From an Estate if Someone Dies Without a Will?

Question: Who would inherit from an estate if someone dies without a will?

Answer: Passing away without a will is known as dying “intestate”.  Administration is the process in which letters are issued to a distributee of the decedent who then collects the decedent’s assets, pays the decedent’s debts and then distributes the remaining assets to the distributees.

In an administration proceeding, it must be determined who are the distributees of the decedent. New York State law defines a distributee 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 under the New York statutes governing descent and distribution:

  • If the decedent is survived by a spouse and children, $50,000 and half of the estate to the spouse, and the balance to the children or children of a predeceased child;
  • A spouse and no children, to the spouse;
  • Children and no spouse, to the children or any issue of a predeceased child;
  • One or both parents, and no spouse or children, 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 are deceased. 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.

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.

The spouse has priority to serve as administrator over the children. If there is no spouse, the children have equal to serve. Brothers and sisters have equal rights. Any person with priority or equal rights to serve as administrator must sign a waiver consenting to the appointment of the administrator, or, a bond must be obtained to protect their share.

- Nancy Burner, Esq. & Kera Reed, Esq.

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