What Happens to Your Estate if You Die without a Will

If there is no will, New York State decides how property is distributed

A will helps ensure that your property is divided according to your wishes. Without a will, property is divided according to New York state law, which may not coincide with your wishes.

When someone dies without a will, New York state distributes the estate among relatives according to the New York State laws of intestate succession. Basically, this law states:

  • If there is a spouse, but no children, the spouse inherits everything.
  • If there are children, but no spouse, the entire estate is divided among the children.
  • If there is a spouse and children, the spouse inherits $50,000 plus half of the value of the remaining estate. Everything else gets divided among the children.
  • If there is no spouse and no children, any living parent(s) inherit everything.
  • If there are no parents, children or spouse, any living sibling(s) inherit everything.
  • If the inheritance would go to a child (as outlined above) and the child dies before the decedent, then any children (grandchildren of the decedent from that child) would inherit that child’s share of the estate.
  • If there are no parents, children, grandchildren or spouse, then the inheritance would be divided among any living grandparents, their children, or their grandchildren (as outlined in the New York State law)
  • If there is no family as outlined above, then the property goes to the state of New York.

For children to inherit according to the rules above, there must be a legal parent-child relationship. This means:

  • There is no distinction made between adopted and biological children. Both inherit in the same way.
  • Foster children and stepchildren are not included (unless they were legally adopted before the person died).
  • Children born after the person dies, inherit like any other child.
  • Children born outside of marriage can inherit only if paternity has been established.

An estate plan ensures that your property distribution aligns with your wishes

If you want to leave assets to friends or have your entire estate go to your spouse, you can only specify that via a will or other tool in your estate plan. The laws of the state of New York have no provisions for domestic partners, fiancées, close friends or other non-familial relationships. A will must be probated in a surrogate court in the county where the decedent lived.

A knowledgeable estate planning attorney can help minimize the complications, delays and costs of probate in a number of ways that include the following:

  • Filing for an administration proceeding. In New York, only estates valued at more than $30,000 need to be probated in court.
  • Transferring assets to named beneficiaries. Assets that are invested in retirement and investment accounts (401k, IRA), insurance policies, and pension plans do not need to go through probate.
  • Create a living trust. A living trust can act as an alternative to a will that states who you want to manage and distribute your assets and property if you are incapacitated, and who will receive your assets and property after you die. Because assets are owned by the trust, there is no need to go through the probate process.
  • Create joint tenancy with a right of survivorship. In New York, when property is owned by multiple people under a joint tenancy arrangement, when one of the owners dies, the property is distributed among the remaining owners without going through probate.

An experienced estate planning attorney can help you determine if a will and/or any of these strategies should be included in your estate plan.

Create your estate plan

The New York estate planning attorneys at Lissner & Lissner LLP can advise you about your estate planning options. Located in midtown Manhattan, we have been helping our clients with elder law and estate law for more than 65 years. We can help you create an estate plan that works for your specific situation. Call (212) 307-1499 or contact us online today for help setting up your estate plan.