What is the “law of intestacy”?

You would be surprised at how many people believe that without a Will, your assets will be turned over to New York State – that simply is not true.

When a person dies without a will, his/her assets are distributed pursuant to the New York State laws of intestacy. Estates, Powers, and Trusts Law § 4-1.1.  Below, we list the statute, but first a brief summary.

For Married Individuals

The spouse receives the first $50,000 of the estate.  Once the first $50,000 is distributed, the surviving spouse gets half of anything remaining and the second half is distributed evenly amongst the decedent’s children.  If a child predeceased the decedent, then that child’s children, will inherit his/her share, equally.

For Unmarried Individuals with Children

Your children will inherit everything equally.  And should one of your children predecease you, then that child’s share shall pass to his/her children.

For Unmarried Individuals without Children

Your share will be distributed first to your parents, if living.  If you parents are not living, then to your siblings.  If any of your siblings predecease you, then that sibling’s share is passed onto his/her children—your niece or nephews.

For Unmarried Individuals without Children, Surviving Parents or Siblings

Your share will first go to any surviving grandparents on both your maternal and paternal sides.  If none, then to your aunts/uncles on both your maternal and paternal sides, and if none, to your cousins.

E.P.T.L. § 4-1.1 Descent and distribution of a decedent’s estate

The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows:

(a) If a decedent is survived by:

  1. A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.
  2. A spouse and no issue, the whole to the spouse.
  3. Issue and no spouse, the whole to the issue, by representation.
  4. One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.
  5. Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.
  6. One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.
  7. Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.

(b) For all purposes of this section, decedent`s relatives of the half blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime.
(d) The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled.