Trusts & Estates

What Happens When you die Without a Will?

The legal term for dying without a valid will in place is dying “intestate.”  As we mentioned in a previous post, a will allows an individual to ensure that at the time of their passing, the distribution of their assets and last wishes will be carried out as they desired. However, if an individual dies without a will in place, the individual’s estate will pass under the “laws of intestacy.”  In other words, the individual’s assets will pass by “operation of law” as opposed to the individual’s last wishes.

The laws of intestacy are codified in New York’s Estates, Trusts and Powers Law, under section 4-1.1; they set default rules for asset distribution when someone passes away without a will. If you look it up yourself, the language may be a bit daunting, as “legalese” so often appears to be; which is why we have broken down the intestacy distribution into this simple chart below:

If the Decedent has… Then…
A spouse (husband or wife) and no children The spouse inherits everything
Children, but no spouse Children inherit everything
Spouse and Children The spouse will inherit the first $50,000 of the estate, plus half of the remaining balance. The children will inherit all else.
Parents, but no spouse and no children The parents inherit everything
Siblings (brothers or sisters) but no spouse, children, or parents The siblings inherit everything
*If a child dies before the Decedent, and had children of their own, then the Decedent would have grandchildren. Those grandchildren would step into the Decedent’s child’s place and inherit in place of the child.


If you’re reading the above chart and you fall into one of the enumerated categories, then you may not have very much to worry about regarding your assets passing, or receiving the assets of a loved one who has passed. But, it is paramount to understand that for an individual to inherit from a decedent under the intestacy laws, New York State requires that there is a legal relationship between the parties. These laws are not flexible, if an individual does not fall into one of the categories enumerated in EPTL § 4-1.1, they cannot inherit a decedent’s assets; accordingly, complications arise quite frequently.

An example of a complication: if an individual passes without a will, leaving behind a child, and a spouse from whom they were separated or estranged, but they never received a legal judgment of divorce or separation, the decedent’s estranged spouse will be entitled to the first $50,000 of the estate and one half of the remaining balance even if the decedent wished to leave them nothing.

Problems also frequently arise regarding the passing of assets in situations involving individuals that were together but never married, and step-children or foster children that have never been legally adopted. Further, complications can also arise regarding the guardianship of any minor children; if a parent passes leaving behind minor children and is not survived by the other parent, the Surrogate’s Court will appoint guardians regardless of the decedent’s last wishes.

The most important things to understand about passing intestate are:

  • If you die intestate you have no control of the distribution of your assets, or the guardianship of any minor children you may leave behind.
  • If the relationship between the decedent and someone the decedent desired to inherit their assets is not a “legal relationship,” they cannot inherit under the intestacy laws.
  • If the decedent’s closest legal relation is too far attenuated, the decedent’s assets will revert to the state under the intestacy statute.

The passing of a loved one, or a close friend, can be one of most difficult periods of an individual’s life; such unfortunate circumstances should not be made worse by the decedent’s estate going where it was not intended to go. Every individual should have a will in place to ensure that their last wishes are carried out.


Contact us today to schedule your will consultation!


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