Trust & Estates Law Blog

Dying Without a Will in the State of New York – What Determines Who Receives Your Assets?

What are the laws of intestate succession?

What your family inherits under the rules of intestate succession are determined by section 4-1.1 of the New York Estates Powers and Trusts Law (EPTL).  This law determines which of your relatives receive your assets.

If I die, will my spouse receive all my assets?

If you are survived by just a spouse, then yes.  If you are survived by a spouse and children, then your spouse will receive the first $50,000 of your estate and the balance will be split equally between your spouse and your children.

What if my spouse predeceases me and I am survived by children?

In that case, your children will each receive an equal share of your assets.

What if I die and do not have a spouse or children?

In that case, your assets go to your parents.  If your parents have both predeceased you, then your assets will go to your siblings.  If you die with no surviving spouse, children, parents, or siblings, then your estate will be inherited by more distant blood relatives.

How are relatives by marriage considered?

Other than your spouse, relatives by marriage, i.e. a daughter-in-law or son-in-law, do not receive anything from your estate under the laws of intestate succession.

Are there any exceptions to these rules?

Yes.  Your spouse and children are entitled to certain family exempt property pursuant to New York EPTL section 5-3.1.  For example, if you die, your spouse is entitled to your car up to a value of $25,000 outside of the intestate succession rules.  In addition – and this is very important – these rules only apply to assets you owned in your name only.

What do you mean by assets owned “in your name only”?

By “in your name only”, I mean it would exclude assets that you held jointly with someone else, assets that are payable to a named beneficiary upon your death, and assets held in trust.

What happens to those types of assets?

Assets held jointly with someone else, i.e. a piece of real property owned with a sibling, would go to that surviving joint owner.  Assets payable to a named beneficiary, i.e. a life insurance policy, would go to that named beneficiary.  Assets held in trust would go to the listed beneficiaries in the trust.

Should I just rely on the rules of intestate succession for my estate?

That would generally not be a good idea, because the rules of intestate succession may not be consistent with your wishes.  For example, most married couples would like their entire estate to be left to their surviving spouse, even if they leave children behind.  The expectation is that the surviving spouse would then provide for the children.  If you die without a Will and have a spouse and children, part of your estate will go directly to your children – which is likely inconsistent with your wishes.

Are there other reasons to have a Will?

Yes.  A properly drafted Will can also allow you to take advantage of tax planning techniques that may reduce the taxability of your estate.  In addition, if you have minor children, a Will can provide for your wishes regarding their care if you pass away before they reach the age of eighteen.  In your Will, you can nominate guardians of their property and person who will act as their surrogate parents in the event you pass away during their minority.

The rules of intestate succession in New York provide a “default” plan for the inheritance of your estate.  Unfortunately, this default plan may not be consistent with your desires regarding the disposition of your assets or the handling of your family affairs.  In order to ensure that these issues are properly addressed, it is important to have a Will in place.  To discuss drafting a Will consistent with your wishes, you should contact an experienced estate planning attorney near you.

Matthew J. Dorsey, Esq. is a Shareholder with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his twenty-seven years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at (518)584-5205, and



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