Intestacy / Intestate
If you die without a will in New York, your assets will go to your closest relatives under state “intestate succession” laws. If you own property and assets, you may want to have a will. That way you decide who you want to give ownership, of your assets to rather than having your state government, deciding who gets your property and assets when you die. In most cases, wills are written legal documents, but some states do recognize other types of wills. The legal requirements of each state can vary, so it’s essential that your will is drafted and executed properly. Our attorneys are not only trained in handling simple estate and probate matters, we take care of complex estate litigation in the event of probate, a will contest or estate fraud in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York.
Here are some details about how intestate succession works in New York.
Which Assets Pass by Intestate Succession
Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.
Many valuable assets don’t go through your will, and aren’t affected by intestate succession laws.
Here are some examples:
- Property you’ve transferred to a living trust
- Life insurance proceeds
- Funds in an IRA, 401(k), or other retirement account
- Securities held in a transfer-on-death account
- Payable-on-death bank accounts, or
- Property you own with someone else in joint tenancy or tenancy by the entirety.
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These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.
Who Gets What in New York?
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
If you die with _(see below)_: here’s what happens:
- Children but no spouse
- Children inherit everything
- Spouse but no descendants
- Spouse inherits everything
- Spouse and descendants
- Spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance
- Descendants inherit everything else
- Parents but no spouse or descendants
- Parents inherit everything
- Siblings but no spouse, descendants, or parents
- Siblings inherit everything
The Spouse’s Share in New York
In New York, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants — children, grandchildren, or great grandchildren. If you don’t, then your spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance
Example 2: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $125,000 worth of Barrett’s property — that is, $50,000 plus $75,000 worth of the balance. Barrett’s daughter inherits the remaining $75,000 share of Barrett’s property.
Children’s Shares in New York
If you die without a will in New York, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See above.)
For children to inherit from you under the laws of intestacy, the state of New York must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
- Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do.
- Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
- Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won’t affect their intestate inheritance.
- Posthumous children. Children conceived by you but not born before your death will receive a share.
- Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they will receive a share of your estate if you acknowledged your paternity or if your paternity was otherwise established under New York law.
- Grandchildren. Your grandchildren will receive a share only if their parent (your child) has died before you do.
As you can see this area of law is tricky, so if you have questions about your relationship to your parent or child, get help from an attorney at the law offices of Castiglia-Rubinstein and Associates today.
Will the State Get Your Property?
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the children, parents, or siblings of a spouse who dies before you do.
Other New York Intestate Succession Rules
Here are a few other things to know about New York’s intestacy laws.
- Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.
- Posthumous relatives. Relatives conceived before — but born after — you die inherit as if they had been born while you were alive.
- Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
- Joint tenant convicted of murder. One joint tenant who is convicted of murdering another joint tenant is not entitled to inherit any money in the joint tenants’ bank account. The convicted joint tenant is entitled only to any money that the convicted joint tenant contributed to the account. (New York Estates, Powers & Trusts Law § 4-1.6.)
A Will does not avoid probate, the attorney’s at the law office of Castiglia-Rubinstein can put together an estate plan to protect you and your families assets. Call the law offices of Castiglia-Rubinstein at 631-465-0444.
We are dedicated to your success — so contact us. Speak with one of our knowledgeable Long Island will and Intestacy litigation, estate planning litigation attorneys today from wherever you are in New York in Nassau and Suffolk, Brooklyn, Kings and Queens Counties, on Long Island and all New York City boroughs including Bronx, Westchester, Richmond County, and Manhattan. Call 631-465-0444 today.
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