Intestacy Laws: Dying Without a Will in NY

By: Roman Aminov, Esq.

A person who dies without a will in New York is said to have diedny intestacy law intestate. If a person owned assets, they either pass automatically, such a joint accounts and accounts with beneficiary designations, or through a court process known as estate administration which is governed by New York’s laws of intestacy, which are codified in EPTL 4-1.1.  A more detailed article on how assets pass when you die can be found here. New York’s intestacy laws control who inherits the decedent’s assets, as well as who has priority to serve as the administrator of the estate. The Surrogate’s Court in the county in which the decedent was domiciled has jurisdiction over the estate. This particular article will discuss the distribution of assets under New York’s intestacy laws.

New York‘s Intestacy Laws
New York law states that if the decedent left a surviving spouse, they are entitled to the following assets, before anyone else gets anything. The surviving spouse under intestacy receives:
1. Cash or cash equivalents, including bank accounts of up to $25,000.
2. One car of up to $25,000 (if the value of the car is greater than $25,000, the spouse has the option of paying the difference to the estate).
3. Household items, including the decedent’s clothes, furniture, appliances, and jewelry up to $20,000.
4. The decedent’s family pictures, books, computers, discs, and software, up to $2,500.

Next, the surviving spouse receives $50,000 in assets and 1/2 of the remainder of the estate if the decedent left children. If the decedent had no children, the spouse inherits everything, no matter how long they were married. In practice, this means that the if the decedent did not leave a will, the spouse can receive well over $100,000 in assets before anyone else collects anything.

What if a person passes away single? If they had children, whether biological or adopted, who survived them, their children each share equally. If one child predeceased (died before the parent) but left behind children of their own (the decedent’s grandchildren), the grandchildren would inherit their parent’s share. If, however, two or more of the decedent’s children predeceased and left children, all of the predeceased children’s shares are combined and distributed to the remaining grandchildren equally. This is called distribution by representation, and essentially means that each of the grandchildren will inherit the same share as all the others. If all of the decedent’s children predeceased, then the grandchildren share the inheritance equally amongst each other.

It may not be surprising to learn that if the decedent was not married and never had any children, their parents inherit their estate. If the decedent’s parents are no longer alive, the decedent’s siblings each take equally. If one of the siblings predeceased, that share goes to the sibling’s child(ren). If more than one sibling predeceased, then their children share equally, similar to the situation with the grandchildren. It should be noted that the statute does not allow spouses or parents who abandoned the decedent in certain circumstances to collect an intestate share, but that discussion is outside the scope of this article.

Priority to Act as Administrator
The administrator of the estate is the person responsible for collecting the assets, paying the debts, and ultimately distributing the assets to the distributees. This is similar to the duties of the executor in a probate proceeding. SCPA 1001 provides the order of who can serve as the administrator of the estate: (a) the surviving spouse, (b) the children, (c) the grandchildren, (d) the father or mother, (e) the brothers or sisters, etc. If there are multiple distributees who are eligible, the court may grant letters of administration to one or more of such persons. Depending on the size and debts of the estate, the Surrogate’s Court, may require the administrator(s) to purchase a bond in order to protect the distributees.

Reasons to Have a Will
Based on the strict rules of estate administration and the uncertainty of who will be administering your estate after you pass, New York estate planning attorneys always recommend the preparation of a last will and testament, and sometimes of living trusts. Among the many reasons to write a will are the ability to pick your executor(s) who will manage the estate, waive the requirement of imposing a bond, and controlling who gets your assets, subject to the spousal right of election. Many clients want the surviving spouse to inherit all of the estate which may not happen if they have children and probate assets over $50,000. Some clients wish to disinherit a child, and others wish to make gifts to siblings and other family members. Almost all clients want to control who is responsible for the administration of the estate assets. Understanding what happens when a person dies intestate is the first step in planning an estate.

To speak with an experienced estate lawyer about your family situation, feel free to contact our office at 347-766-2685.

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