If I Die Without a Will, What Happens to My Property?

If you die without a valid will, New York’s law of intestate succession will determine who receives your property. If you want your property to go to any non-relatives, such as friends or charities, you must make a will. A New York elder law attorney can assist you in ensuring your property goes where you want.

Many people in America die without a will. Without a will, the law of intestate succession becomes your estate plan, even if it was never your intent to choose it. In general, your property will go to your spouse, if you have one, your descendants (children, grandchildren, etc.) and then more distant family members.

If you die married but without descendants, your spouse receives everything. This rule now applies to same-sex couples who are married, and 2013 NY A.B. 7100 (NS), currently pending, will amend the relevant statutes to remove gendered language regarding descent and distribution. Other members of your family will not get anything at all.

If you are married when you die and have direct descendants, your spouse receives the first $50,000 of the estate, and half of everything else. The descendants receive the rest.

If you have no spouse (either because you never married, or are divorced or widowed), the court uses a priority list of family members. The list divides family members into categories. As the court works its way down the list, if there is even one person in a particular category, the court will stop there and distribute the entire estate, even if there are people in lower-ranking categories. Here are the categories:

• Direct descendants — if there are several descendants, including people in different generations, a special rule determines their fractional shares
• A parent or parents
• Descendants of the parents, who are not also descendants of the dead person (in other words, brothers and sisters, nieces and nephews, great-nieces and great-nephews, etc.)

If you have no direct descendants, parents or descendents of parents, but there are more distant relatives on both sides of the family, the court will usually divide the estate in half. The halves are distributed to each side of the family, using the following categories:

• Grandparents or their descendants, who are not issue of the dead person or of the dead person’s parents (uncles, aunts, first cousins)
• First cousins once removed

Even if you are happy to have your family receive your property, dying without a will can make things much more complicated for those you leave behind. A New York estate planning attorney can help you create a succession plan that will best carry out your wishes.