Intestacy - What Happens When You Don’t Have A Will
When you die without having created a valid Will during your lifetime, it is known in the legal world as having died “intestate.” When one dies intestate, it is often wondered what happens to the decedent’s estate. Where does the money go? Who gets the money and/or property? Is it first come, first serve or is there a pecking order? This situation and these questions are resolved through intestacy laws. Every state has different intestacy laws. This blog will cover the intestacy laws of New York State and are relevant when a person dies a resident of NY and without a Will.
The Estates, Powers, and Trusts Laws govern NY intestacy, specifically section 4-1.1. If a person is married at the time of their death and has no children, the decedent’s whole estate transfers to their spouse. If a person dies and leaves behind a spouse and children, the equation changes a bit. In this situation, the spouse received the first $50,000 and then half of whatever is left over. The children would then split the other half. There is a wrinkle here, however, that not many people (lawyers included) know about. In this situation, there is something called the marital exemption. EPTL §5-3.1 states that certain property passes directly to the spouse before we get into the intestacy equation. So, off the top of the decedent’s estate, a surviving spouse is entitled to property such as utensils, musical instruments, jewelry, family bible, books, domestic and farm animals with necessary food, farm machinery, one tractor, and a car worth up to $25,000. These items transfer right to the surviving spouse. Once these items are accounted for, then the spouse takes $50,000 and half of whatever else is left.
If a person dies and leaves behind only children, and no spouse, the children split the estate equally, depending on how many children there are. If a child of the decedent predeceased the decedent but left behind their own children, those children (grandchildren of the decedent) would split whatever their parent would have inherited had they not predeceased the decedent. To be considered a “child of the decedent,” there must have been a legal parent-child relationship. Adopted children are treated just like biological children. Children born after the decedent passed also inherit. Non-marital children will inherit from their father so long as paternity is proved through either DNA evidence or evidence which establishes that a father openly and notoriously held someone out to be their child. This is specific to paternity because it is much easier proving who one’s mother is.
If the decedent had no spouse or children, the intestacy laws in NY say that the estate would go to the decedent’s parents. If the parents are not alive, it would go to the decedent’s siblings. If the siblings are dead but leave behind children of their own (nieces and nephews of the decedent), then the estate would go to them. If there is still no one, the law next looks for cousins of the decedent. Finally, if a person dies without a Will and without any living family members of any degree, the estate goes (escheets) to the State of New York.
The intestacy law of NY is basically how the government thinks you would have wanted your estate to pass. If you have read this blog and are unhappy with how the intestacy law would handle your estate or want to have more say in who inherits your estate and how much, then you should hire an attorney to draft your Will. If your loved one has died intestate and you realize you are entitled to an inheritance through intestacy laws, it is important to hire an Estate Attorney to ensure you receive your proper share of the estate.