When a Person Dies without a Will in New York: How the Assets are Distributed and to Whom

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UPDATED: Jul 16, 2021

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Written By: Jeffrey JohnsonUPDATED: Jul 16, 2021Fact Checked

If you want to ensure your assets go to certain individuals or organizations after your death, (spouses, children, friends, foundations), you should make a Will. Without one, you will die intestate and your possessions will be passed according to the laws of intestate succession. This means that the state where you live gets to decide who inherits your home, your stereo system, your SUV, and anything else you may own. You could have made sure your friend Joe got your golf clubs in your Will, but because you failed to create one, the state may choose to give them to Uncle Frank.

New York is not a Community Property state, which means that property acquired during a marriage (except for gifts or inheritances) does not automatically all go to the surviving spouse, although it may, depending on who else is surviving among other family members. Without a Will, in New York your estate will be distributed as described below.

Surviving spouse – A surviving spouse is generally first in line to get any assets from an intestate estate, but the amount that he or she is entitled to varies as follows:

  • If there are no surviving issue (children, grandchildren, great-grandchildren), a surviving spouse gets the entire estate.
  • If there are surviving children, a surviving spouse gets the first $50,000, plus one-half of the remaining property in the estate.

Heirs other than surviving spouse – Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to:

  • Decedent’s issue.
  • Decedent’s parent or parents equally.
  • Issue of decedent’s parents (brothers, sisters).
  • If none of the above relatives are surviving, but the decedent is survived by one or more grandparents or the immediate issue of grandparents (aunts and uncles), half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased. The other half passes to the maternal relatives in the same manner.
  • If there is no surviving grandparent or issue of grandparents on either side, the entire estate passes to the relatives on the surviving side in the same manner as the half portion would.
  • The issue of grandchildren does not include those individuals more remote than grandchildren of such grandparents. Great-grandchildren of the decedent’s grandparents split one-half to the great-grandchildren of the paternal grandparents side and one-half to the great-grandchildren of the maternal grandparents side. If there are no great-grandchildren of grandparents on one side, the whole amount goes to the other half.

If there is no taker under any of the above provisions, the intestate estate passes to the state of New York.

Complicated enough for you? To make sure that your property is distributed according to your wishes, get in touch with an estate planning attorney in New York state and make a Will now. There’s no time like the present.

Visit another FreeAdvice article for a step-by-step guide to the probate process.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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