When someone in New York dies without creating a will, protocols and laws exist that dictate what happens to their assets. Under the doctrine of intestate succession, a decedent’s assets that would have ordinarily passed through a will are then given to their closest living relatives.
Scope of Assets Affected by Intestate Succession
Usually, intestate succession only applies to assets owned by the decedent in their name alone. Also, many assets are not passed through a will and are unaffected by laws of intestacy, including:
- Proceeds of a life insurance policy;
- Payable-on-death bank accounts;
- Property the decedent transferred into a living trust;
- Funds held in a 401(k) or IRA;
- Securities placed and held in a transfer-on-death account; and
- Property the decedent owns with another in tenancy by the entirety or joint tenancy.
Whether or not the decedent has made a will, these assets will pass to their named beneficiary or to a property’s surviving co-owner.
Intestate Succession Recipients
In New York, assets are doled out based upon the surviving relatives a decedent has. Children, parents, siblings, and spouses are the most common recipients of assets through intestacy, but others may also inherit.
Some cases are straightforward – when a sole, close category of family exists. For example, when there are children but no spouse, the children inherit everything and vice versa. If the decedent has no spouse or descendants but surviving parents, then they inherit everything. If no spouse, descendants, or parents exists but the decedent had siblings, then they will receive all the intestate assets.
Spousal and Child Intestate Succession
In cases where the decedent has both a surviving spouse and descendants, the assets are split. The spousal share depends upon whether decedent has living descendants like children, grandchildren, or great grandchildren. If so, the spouse inherits the first $50,000 of the intestate property plus half the remaining balance while the rest is split among the descendants.
If the decedent has no will but has children, in New York they will receive an intestate share. The size of each child’s share is dependent upon the number of children decedent has and whether the decedent also has a spouse. To inherit, the children must also legally be considered children by the state of New York. Though for many people this is not at issue, confusion may arise when the decedent has:
- Foster children;
- Adopted children;
- Children born out of marriage;
- Posthumous children; and
Situations, where these individuals exist and are potentially posed to inherit, can become complex and tricky, so consulting an attorney experienced in New York estate law is advisable.
When a Decedent Has No Family
Dying with no will and without any family is a rare occurrence. This is because New York estate laws are designed to ensure a decedent’s property passes to anyone even remotely related to them, such as a:
- Niece or nephew;
- Great niece or great nephew; or
If the decedent truly leaves no family members behind, all their property will be forfeit (or “escheat”) to New York State. This is one reason it is so important to understand estate law issues and ensure decisions are discussed with a New York estate attorney and decisions made to avoid this outcome.
New York Estate Planning Law Firm
At MOWK Law, we are here to help you will all your New York wills, trusts and other estate planning needs. The time to plan is now—get in touch with us today to start or revise your estate plan.