The purpose of drafting a last will and testament is primarily to control where your assets go after you die. Who should get your money? Who should get your house? Who shouldn’t get anything? A last will must be probated in order to have affect. This means that after you die, someone must petition the Surrogate’s Court to validate the will. But what happens if you don’t have a will?

New York City Probate Attorney Antonelli & Antonelli

Your heirs must go to Surrogate’s Court

If you die with assets in your name, then your survivors must go through a court process—whether you have a will or not. Someone must get authority to handle your assets. If there’s a will, then that person is typically named in the will as the executor. If there’s no will, then one of the heirs typically gets appointed to a position referred to as the “administrator.” This is the person in charge of handling your estate. Will or no will, you must go to court. 
Occasionally, a person dies with no assets in their name. Either they have nothing, or every asset has been placed in a trust or has some other form of ownership that doesn’t require probate (such as a bank account with a named beneficiary or real estate owned with another as joint tenants with rights of survivorship). Avoiding court is a benefit of meticulous estate planning.

Authority to act on behalf of your estate is up for grabs

One of the benefits of a will is that you can name the person who should be in charge of handling your estate—the executor. If you don’t have a will, then the Surrogate will typically appoint one or more of your heirs to a similar position referred to as “administrator.” The appointment is based on the order of priority laid out by New York law. The order of priority goes like this:
  • Spouse
  • Children 
  • Grandchildren
  • Parents
  • Siblings
The list goes further to cover less common cases such as where all heirs agree to designate a third party to serve as administrator.
Choosing a person to be in charge might not be critical if all your heirs are prudent, reliable, and trustworthy people. But in a family with untrustworthy characters and acrimonious relationships, it’s smart to pick the right person and avoid a fight.

New York State writes your will for you

If a person passes away as a resident of New York State but leaves no will, then all individually owned property passes according to the New York laws of intestacy. This statute essentially creates a will for those who don’t have one. Here are the rules.
First, we’re only talking about individually owned property, which is a form of ownership that lacks any direction as to who gets the property after you die. Most property is individually owned. But certain property that does direct who comes into ownership upon your death is not considered individually owned and instead passes to the person specifically designated. The following types of property are not individually owned and do not pass according to your will nor according to the laws of intestacy.
  • A joint bank account held by two or more people passes to the survivor.
  • Real estate held as “joint tenants with rights of survivorship” passes to the surviving owner.
  • A bank account, insurance policy, investment account, or other asset with a named beneficiary passes to the person named.
  • Property transferred to a trust is controlled by the terms of the trust.
Pretty much everything else passes according to your will or, if you don't have one, according to New York State law.
The people entitled to your assets all depends on their relationship to you—either biologically or adopted-in. Friends, caretakers, lovers, and those people who were really good to you during life don’t get anything under the law. So if you want to leave a gift for someone who wouldn’t inherit under the law, it’s critical to draft a last will or give the gift during life. Here is what is referred to as the order of intestacy—the people who inherit from you if you don’t leave a will.

Spouse and no children

  • If you’re survived only by a spouse, then your spouse inherits everything.

Spouse and children

  • If you’re survived by a spouse and children, then your spouse gets the first $50,000. Whatever remains is then divided into two shares. Your spouse takes the first share, and your children split the second share equally.
  • Children of predeceased children (grandchildren) step up to share as well. If there is more than one predeceased child leaving children, then all grandchildren inherit equally.
  • Children but no spouse
  • If you aren’t married when you die (or if your spouse is disqualified from inheriting) but you leave children, then your children take equal shares of your estate.
  • Children of predeceased children (grandchildren) step up to share as well. If there is more than one predeceased child leaving children, then all grandchildren inherit equally.

No spouse nor children

No spouse nor kids? The next class to inherit is your parents. If only one parent survives, that parent gets 100%

No spouse, children, or parents

Parents usually don’t survive their kids, so siblings would inherit in this situation. If there is a surviving sibling and a predeceased sibling, then the kids of the predeceased sibling step up to take the predeceased sibling’s share. In other words, nieces and nephews could inherit in this situation.

Grandparents, aunts, uncles, and cousins

In much more rare situations, where a person isn’t survived by more closely related family, the person’s estate would pass to the grandparents if they survive. Grandparents rarely live longer than their grandchildren, but in theory, the estate would be split equally between the grandparents on the maternal side and the grandparents on the paternal side.

More commonly, the grandparents don’t survive and it’s the aunts, uncles, or cousins who inherit. The estate is still split equally between the maternal and paternal sides, so there might be one maternal heir who gets 50% and multiple paternal heirs who each must share the other 50%.

No heirs?

Your heirs could be anyone down to first cousins once removed—the great-grandchildren of your grandparents (your cousins’ kids)—but this is very rare. Even more rare is if you have no heirs, in which case your property escheats (ownership reverts) to New York State. The money is deposited into a fund held by the New York State Comptroller indefinitely.

Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

Daniel R. Antonelli
Representing trust & estate clients with an emphasis on estate litigation in the New York City Metro Area.