If you die without a will in New York, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in New York.
Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:
If you die with:
here's what happens:
|children but no spouse||children inherit everything|
|spouse but no descendants||spouse inherits everything|
|spouse and descendants||spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance descendants inherit everything else|
|parents but no spouse or descendants||parents inherit everything|
|siblings but no spouse, descendants, or parents||siblings inherit everything|
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 don't, then your spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance
Example 1: Bill is married to Karen, and they have two grown children. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright -- those things are not intestate property. Bill also owns $350,000 worth of other property that would have passed under a will. Karen inherits $200,000 worth of that property -- that is, $50,000 plus $150,000 worth of the balance. The two children split the remaining $150,000.
Example 2: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $125,000 worth of Barrett's property -- that is, $50,000 plus $75,000 worth of the balance. Barrett's daughter inherits the remaining $75,000 share of Barrett's property.
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. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of New York must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.
If you want to read the law, New York Estates, Powers & Trusts Law § 4-1.2 covers parent-child relationships.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
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.
Here are a few other things to know about New York's intestacy laws.
To learn more about intestate succession, read How an Estate Is Settled If There's No Will.
You can find New York's intestate succession law here: New York Estates, Powers & Trusts Law § § 4-1.1 to 4-1.6.
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For more on New York estate planning issues, see our section on New York Estate Planning.