Die without a will in New York? What happens?

Adler & Adler, PLLC Team

If you die without a will in New York, your property will go to your next-of-kin under New York state intestate succession laws. Who gets what depends on who your living family members are and their relationship to you. The family members who are entitled to a share of your estate if oyu die without a will are called distributees.

Non-probate assets are not affected by intestate succession laws. Non-probate assets will pass to the surviving joint tenant (in the case of joint tenancy with right of survivorship) or to the beneficiary you designate (in the case of the first 5 bulleted items below), whether you have a will or you do not have a will. Examples of non-probate property include:

  • Property you’ve transferred to a revocable trust;
  • Life insurance proceeds (unless your estate is the designated beneficiary);
  • IRA, 401(k), or retirement plans (unless your estate is the designated beneficiary);
  • Securities held in a transfer-on-death bank account (TOD account);
  • Payable-on-death bank accounts (POD accounts); or
  • Property you own with another person in joint tenancy with right of survivorship.

The Spouse’s Share in New York

In New York, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants (children, grandchildren, or great grandchildren).

  • If you die without a will in New York, and have no living descendants your spouse inherits everything.
  • If you have living descendants, then your spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance

Children’s Shares in New York

If you die without a will in New York, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married.

If you die with children but no spouse your children inherit everything.

For children to inherit from you under the laws of intestacy, the state of New York must consider them your children, legally. Here are some things to keep in mind.

  • Children you legally adopted will receive an intestate share, just as your biological children do
  • Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
  • Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won’t affect their intestate inheritance.
  • Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they will receive a share of your estate if (1) you and the child’s mother signed an acknowledgment of paternity and filed it where your child’s birth certificate is registered, (2) you signed a document acknowledging paternity; you openly acknowledged the child as your own; (4) or a court has determined your paternity.
  • Children born through artificial insemination. Your child born through artificial insemination will receive a share of your estate if you consented to the use of your genetic material to be used after your death and this consent was made within seven years of your death.
  • A grandchild will receive a share only if that grandchild’s parent (your son or daughter) is not alive to receive his or her share.
  • “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.
  • Posthumous relatives (relatives conceived before — but born after — you die) inherit as if they had been born while you were alive.

What is Escheat?

If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, grandchildren, great grandchildren, parents, grandparents, siblings, nieces, nephews, great nieces or nephews, aunts, uncles, or cousins.

Best to have a Will

If you die without a will, state law will determine the distribution of your estate. As explained above this is known as the law of intestate succession. Through these laws, each state, in effect, draws your will for you – determines “who gets what” – according to what seems most equitable for the greatest number of its citizens. The problem with these laws is they are designed for general application and rarely suit individual circumstances. Preparing your own will assures that your property will go to the people you choose.

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