New York Estate Planning & Elder Law Blog
Recently we published a blog about the difference between probate and non-probate assets . Probate is the legal process that occurs after a person’s death in which a court determines if a valid will exists and takes care of various legal aspects related to things like debts and distribution of probate assets. Usually, probate assets include assets that are owned individually and not governed by a contract. When a person dies without a valid will in place, a court will determine how your assets should be distributed according to your state’s law. However, this may not always be in line with your personal wishes.
What is intestate succession?
Intestate succession is the legal term used to describe the process by which a court will distribute your assets upon your death once other obligations, like debts, have been addressed if a person dies “intestate.” Dying intestate means that an individual is deceased but has not left a valid will. It is important to remember that not all wills are automatically valid, and there are certain statutes in each state that define what qualifies as a valid will. Each state has their own statutes governing the “line of succession,” a term used to refer to the path courts follow in distributing your assets if you die intestate.
What is New York’s intestate succession law?
As mentioned, each state has its own statutes governing intestate succession. According to the New York State Unified Court System, the basic line of succession is:
| IF the Decedent Has: | Then This Occurs: |
| A spouse but no children… | The spouse inherits all assets. |
| Children but no spouse… | The children inherit all assets. |
| Both a spouse and children… | The spouse will inherit the first $50,000 of the estate as well as half of the remaining balance of the estate with the children inheriting the rest. |
| Parent(s) but no spouse and no children… | The parent(s) will inherit everything. |
| Sibling(s) but no spouse, children, or parents… | The sibling(s) will inherit everything. |
Further things to note about children’s role in intestate succession include
- Adopted children are treated like biological children for purposes of inheritance;
- Foster and/or step-children will not inherit through the line of succession unless such children were legally adopted;
- Children of the Decedent but born after the Decedent’s death will inherit;
- Children born outside of a marriage will inherit from their father if paternity has been proven; and
- Grandchildren of a Decedent take the place of their deceased parent in the line of succession when such circumstances arise.
There are many other complex provisions related to the line of succession and intestate succession in New York in general.
As you can see, there are various circumstances where assets may be distributed by a court in the absences of a will that could be contrary to your wishes. It is important not just to think about how you want to distribute your assets, but to ensure that you take the steps to protect those assets and have them distributed according to your wishes. Having insurance policies or other non-probate assets can certainly help provide financial security for your loved ones after your death, but they do not cover all your assets. It is important to make sure that you have an estate plan that does.