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EPTL 4-1.1: Who Inherits When There Is No Will — Intestate Shares Explained
When a New York resident dies without a valid will, the estate does not go to the state, to whoever files paperwork first, or to whoever the family agrees should receive it. It passes according to a fixed statutory formula set out in Estates, Powers and Trusts Law (EPTL) § 4-1.1, New York’s intestate succession statute. The statute establishes a strict order of priority among surviving relatives, and the Surrogate’s Court has no discretion to deviate from it based on fairness, family arrangements or the decedent’s presumed wishes.
This page explains the statutory order of inheritance, works through concrete examples with dollar figures, describes how administration proceeds in Surrogate’s Court under SCPA Article 10, and points out the mistakes that most often derail intestate estates.
What Property Passes Under EPTL 4-1.1
Intestate succession governs only the probate estate: property the decedent owned in his or her sole name with no beneficiary designation. It does not control jointly owned property with rights of survivorship (which passes to the surviving joint owner), life insurance, retirement accounts and transfer-on-death accounts with valid beneficiary designations, property held in trust, or Totten trust (in-trust-for) bank accounts. Many families are surprised to learn that a decedent’s largest assets pass entirely outside EPTL 4-1.1. Before calculating shares, identify what is actually in the intestate estate.
The Order of Distribution Under EPTL 4-1.1(a)
The statute distributes the net estate, after debts, funeral expenses and administration costs, in the order below. Each class takes only if no one in a higher class survives.
| Survivors | Who takes | Share |
|---|---|---|
| Spouse and children | Spouse, and the children or their descendants by representation | Spouse receives $50,000 plus one-half of the balance; the children take the other half (EPTL 4-1.1(a)(1)) |
| Spouse, no children | Spouse | Everything (EPTL 4-1.1(a)(2)) |
| Children, no spouse | Children, by representation | Everything (EPTL 4-1.1(a)(3)) |
| No spouse or descendants | Surviving parent or parents | Whole estate (EPTL 4-1.1(a)(4)) |
| No spouse, descendants or parents | Issue of the decedent’s parents (siblings, nieces, nephews), by representation | Whole estate (EPTL 4-1.1(a)(5)) |
| No spouse, descendants, parents or siblings’ issue | Grandparents first, then their issue, but not beyond grandchildren of the grandparents (first cousins) | One-half to the maternal side and one-half to the paternal side (EPTL 4-1.1(a)(6)) |
| No closer relative | First cousins once removed (great-grandchildren of grandparents) | Whole estate (EPTL 4-1.1(a)(7)) |
If no eligible relative exists within these classes, the estate escheats to the State of New York. Relatives more remote than first cousins once removed, such as second cousins, do not inherit under the statute.
Worked Examples
Example 1: Spouse and two children
A decedent dies with a net intestate estate of $650,000, survived by a spouse and two children. The spouse takes $50,000 off the top plus one-half of the remaining $600,000, for a total of $350,000. Each child takes one-half of the remaining $300,000, or $150,000 each.
Example 2: Small estate with spouse and children
Net estate of $48,000, survived by a spouse and three children. Because the estate is less than $50,000, the spouse takes the entire $48,000 and the children receive nothing. In addition, the spouse (or, if none, children under 21) is entitled to exempt property off the top under EPTL 5-3.1, including up to $25,000 in cash, one motor vehicle up to $25,000 in value and certain household items, before intestate shares are even calculated.
Example 3: Predeceased child and representation
A widowed decedent leaves $300,000. She had three children: two survive her, and one predeceased her leaving two children (the decedent’s grandchildren). Under EPTL 1-2.16, New York uses per capita at each generation. The estate divides into three shares at the children’s level: each surviving child takes $100,000, and the remaining $100,000 is split equally between the two grandchildren, $50,000 each.
Example 4: No spouse, no descendants, no parents
A decedent leaves $400,000, survived by one brother and by two nieces who are children of a predeceased sister. The brother takes $200,000; each niece takes $100,000, taking their deceased parent’s share by representation under EPTL 4-1.1(a)(5).
Special Rules That Change Who Counts as an Heir
Half-blood relatives inherit the same as whole-blood relatives under EPTL 4-1.1(b). Adopted children inherit from their adoptive parents as biological children would; inheritance from birth parents is generally cut off, subject to exceptions in Domestic Relations Law § 117. Non-marital children inherit from their father only if paternity is established under EPTL 4-1.2: through an order of filiation, an acknowledgment of paternity, genetic marker testing, or open and notorious acknowledgment of the child coupled with clear and convincing evidence of paternity. This is one of the most heavily litigated issues in intestate estates. Children conceived after death may inherit only under the narrow conditions of EPTL 4-1.3.
Under EPTL 5-1.2, a surviving spouse loses intestate rights if there was a final divorce or an invalid marriage, or if the spouse abandoned the decedent or refused to support the decedent. Separation alone, without a decree, generally does not disqualify. Parents who abandoned a child are disqualified from inheriting from that child under EPTL 4-1.4. And a lifetime gift counts against an heir’s share as an advancement only if evidenced by a writing signed as required by EPTL 2-1.5.
Procedure: Administration in Surrogate’s Court (SCPA Article 10)
An intestate estate requires the appointment of an administrator rather than an executor. The petition is filed in the Surrogate’s Court of the county where the decedent was domiciled (SCPA § 205). The proceeding runs as follows.
- Determine priority to serve. SCPA § 1001 sets the order: surviving spouse, then children, then grandchildren, then parents, then siblings, then other distributees. A person with equal or greater priority may consent to another’s appointment.
- File the petition with a certified death certificate, the filing fee (based on estate size under SCPA § 2402), and a family tree affidavit where kinship is not straightforward.
- Serve or obtain waivers from all distributees. Every person with an equal or prior right to letters must sign a waiver and consent or be served with a citation and given the opportunity to appear.
- Post a bond. Administrators are generally required to post a surety bond under SCPA § 805 unless it is dispensed with, since there is no will waiving it. The bond premium is an estate expense.
- Letters of administration issue, authorizing the administrator to collect assets, pay debts and distribute the estate under EPTL 4-1.1.
If the personal property is $50,000 or less, a simplified voluntary administration under SCPA Article 13 is available instead.
Deadlines to know
| Event | Timing |
|---|---|
| Filing for administration | No statutory deadline, but delay risks asset loss, and creditors or the Public Administrator may step in. |
| Creditor claims | Creditors have seven months from the issuance of letters to present claims; distributions before then expose the administrator to personal liability (SCPA § 1802). |
| New York estate tax return | If required, due nine months after death. |
| Kinship claims | Claimants in a proceeding involving unknown heirs generally must prove their status within the timeframes set by the court; where kinship cannot be established, funds may be deposited with the Commissioner of Finance under SCPA § 2222. |
Common Pitfalls
| Mistake | Consequence |
|---|---|
| Assuming a partner inherits | New York does not recognize common-law marriage contracted in New York. An unmarried partner receives nothing under EPTL 4-1.1, regardless of the relationship’s length. |
| Ignoring a missing or estranged heir | Every distributee must be accounted for and cited. Skipping an estranged sibling or an unknown child can void the proceeding. |
| Distributing before the seven-month claims period expires | Personal liability for the administrator. |
| Failing to document kinship | In estates passing to cousins, the court requires a formal kinship hearing with documentary proof and often a guardian ad litem for unknowns, a process that takes significant time if records are incomplete. |
| Overlooking spousal disqualification or paternity issues | Either can dramatically shift the shares. |
A Relative Died Without a Will?
We petition for letters of administration, establish kinship where the court demands proof, and protect statutory shares when other family members overreach. If an intestate estate has stalled, or someone else is about to be appointed administrator, timing matters. Call us at 212-233-1233 or email [email protected].
Related resources on this site: New York intestacy calculator, what happens when a relative dies without a will, kinship proceedings.
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
