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By Bernard A. Krooks, Certified Elder Law Attorney

Special Guest Contributor: Amy C. O’Hara, Certified Elder Law Attorney

Thinking about death is never pleasant, but understanding what happens to your money, home, and belongings if you pass away without a Last Will and Testament is important for protecting your loved ones. In New York, dying without a valid will is called dying “intestate.” When that happens, state law—not you—decides who inherits your property. The rules are set out in the New York Estates, Powers and Trusts Law (EPTL), and they may not match your wishes.

When a person dies intestate in New York, the process is handled through the Surrogate’s Court in the county where they lived. The court appoints someone to manage the estate—called the “administrator.” This person collects the deceased’s assets, pays outstanding debts and taxes, and then distributes what remains to the heirs determined by law. The law creates a family tree of priority, starting with the closest living relatives.

Here is how the basic inheritance order works in New York:

• If you leave a spouse and no children: Your spouse inherits everything.

• If you leave children but no spouse: Your children inherit everything, divided equally. If a child has died before you but left their own children (your grandchildren), that share passes down to them.

• If you leave both a spouse and children: Your spouse inherits the first $50,000 plus half of the remaining estate. Your children inherit the other half, divided equally.

• If you have no spouse and no children: Your estate passes to your parents.

• If your parents have died: Your estate passes to your siblings (or their descendants if they have died).

• If there are no surviving immediate relatives, the inheritance can go further out to nieces, nephews, grandparents, aunts, uncles, and cousins. If no family members can be found, your estate eventually goes to the State of New York.

These rules apply only to assets that are considered part of your “probate estate.” Certain property passes automatically outside of the intestacy process—such as jointly owned property with rights of survivorship, life insurance proceeds with a named beneficiary, and retirement accounts with designated beneficiaries.

Dying without a will can create challenges. First, you lose control over who receives your property. You cannot leave specific gifts to friends, charities, or unmarried partners, because New York’s intestacy law recognizes only spouses, blood relatives and legally adopted children as heirs. Stepchildren do not inherit unless legally adopted, no matter how close your relationship was.

You also cannot choose who will handle your estate—New York law sets the order of priority for who may serve as administrator, and it might not be the person you would have picked.

The intestacy process can also be slower and more costly. Family members may disagree about who should be in charge or how property should be handled. If no close relatives are available, the Public Administrator’s office may have to take over, adding another layer of bureaucracy.

Creating a will is not only about distributing your assets—it’s about reducing stress for your loved ones. A properly drafted and executed will in New York allows you to:

• Choose exactly who inherits your property and in what amounts.

• Name an executor you trust to manage your estate.

• Appoint guardians for minor children.

• Provide for non-relatives or charities.

Without a will, your legacy is left to a set of rigid legal rules. While these rules aim to be fair, they cannot reflect your personal values, relationships, or intentions. By taking the time to prepare a will, you ensure that your wishes—not the default laws—guide the distribution of your life’s work.

In short, if you live in New York, dying without a will means the state will write one for you—and you might not like what it says. The best way to protect your loved ones, your property, and your peace of mind is to plan ahead. Consulting with an experienced estate planning attorney can help you create a clear, valid, and enforceable plan that speaks for you when you no longer can.

Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.littmankrooks.com.