Elder Law Estate Planning in New York – What is Intestate Succession?

When someone passes away without creating a last will and testament or trust, the individual passes away in intestate, meaning his or her assets will be distributed to heirs based on a line of succession under New York state probate laws. While most of us plan for the time after we pass away, not everyone goes through the process of creating a will or trust and this can create some complex legal issues when the estate passes through probate.


Unless a trust is created, every estate must pass through probate court in New York, even if the deceased created a clear and concise will. However, there are a few types of assets that will not need to pass through intestate sucession if the decedent pases away without a will. These include:


  • Life insurance payouts
  • IRA, 401(k), or other retirement account
  • Securities from a transfer-on-death account
  • Bank accounts set up as payable-on-death
  • Property owned with someone else in joint tenancy


These types of assets already have beneficiaries named to them and therefore do not need to pass through any type of probate. However, other assets like homes, vehicles, personal possessions, other bank accounts will likely be subject to intestate succession.


Who receives inheritance in New York


New York Estates, Powers, and Trusts Laws lay out a clear line of succession when individuals pass away intestate. Typically, surviving spouses and children are among the first in this line of asset distribution. This table shows the full line of succession:



Children and no spouse Entire estate
Spouse and no children Entire estate
Spouse and children Spouse inherits first $50,000 of estate property & 1/2 balance. Children inherit remaining balance
Surviving parents, no children and spouse Entire estate
Surviving siblings only Entire estate

When can the state seize and estate?


The state of New York can actually take possession of an estate without a last will and testament in very limited circumstances. For the state to seize the estate, the deceased must pass away without creating a trust or last will and testament and must not have any surviving relatives.


Other surviving relatives eligible to receive assets from an intestate include half-siblings, adopted children, children conceived posthumously. Foreign relatives are also to receive assets from an intestate decedent, regardless of immigration status in the country.


While many of these scenarios are unlikely for your beneficiaries to go through if you created a trust or estate, you may find yourself in a position to inherit assets from a relative who did not create his or her own last will and testament. By understanding intestates and lines of succession in New York, you can advocate for yourself as an interested party in probate court and recover duly owed assets.

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