Mr. Goodwin is everything you want in an attorney: professional, honest, thorough, and genuinely caring. He always explains things clearly, so I understood exactly what was happening and what to expect next. His attention to detail and persistence really stood out. Looking back, I feel lucky to have found him. He guided me through the whole process expertly, and I deeply appreciate all his hard work. Would definitely recommend him to anyone needing legal help.
Call Today:
212-233-1233
What are Heirs at Law
Heirs at law are called distributees in New York. They are the persons entitled to inherit from a decedent who dies without a will, that is, intestate, and they are usually the decedent’s closest living relatives. The order of priority among them is set by EPTL § 4-1.1.
When there is a will, the will is followed. A New York decedent can leave heirs at law out of the will, with one exception: the spouse. For more on the spouse’s right not to be omitted, see our page on the spousal right of election. Heirs who are left out of a will usually object to its probate, because if the will is denied probate they inherit from the estate under the intestacy rules.
Heirs at Law’s Shares
When a New York resident dies without a will, the estate passes as follows.
| Survived by | Intestate share |
|---|---|
| Spouse but no children* | The entire estate to the spouse |
| Children* but no spouse | The entire estate divided among the children |
| Spouse and children* | $50,000 plus one-half of the remaining balance to the spouse; the other half to the children, by representation |
| No spouse, no children*, but one or both parents | The entire estate to the parents or the surviving parent |
| No spouse, no children*, no parents, but siblings | The entire estate to the siblings or their children, by representation |
| No spouse, children*, parents or parents’ children*, but surviving grandparents or the children* of the grandparents | One-half each to the paternal and maternal grandparents or their issue, by representation. If there is no issue on one side, the whole to the other side. |
*Children include the descendants of the children.
Inheriting by Representation
When an heir at law dies before the decedent, that heir’s descendants, if any, step into the heir’s place and inherit from the decedent by representation. Suppose you are divorced with three children, A, B and C. When you die, C is already dead, but C left two children, D and E. Because C would have inherited from you as your child but predeceased you, D and E take C’s place.
Computing D’s and E’s shares can be more involved, because New York’s default rule is representation as defined in EPTL § 1-2.16. The descendants nearest in degree to the decedent receive equal shares. If some of the descendants at that degree have predeceased, their shares are combined and the predeceased descendants’ issue all receive an equal share of the combined amount.
In the example, if you die with a net estate of $90,000 and only C has predeceased you, A and B get $30,000 each, while D and E, who take C’s place, get $15,000 each. That is straightforward. It gets more complex when two children predecease. If B and C both predeceased you, B leaving one child, F, and C leaving two, D and E, then A, who survived, gets $30,000. D, E and F are all descendants in the same degree (all your grandchildren), so they receive equal shares rather than stepping into their own parent’s shoes: they share the remaining $60,000, the combined shares of B and C, and each gets $20,000.
If all of your children are living when you die, your grandchildren inherit nothing from you.
Determining Who Is an Heir at Law
Identifying the children is easy when they were born within a marriage. Questions arise with foster children and stepchildren, adopted children, children placed for adoption, children born outside marriage, children born after the decedent’s death and children conceived by artificial insemination. The general rules are these.
| The child | Inherits from you? |
|---|---|
| A child you adopted | Yes. An adopted child takes a share like a biological child. |
| A child you placed for adoption who was legally adopted by another family | No. The child is no longer your child for inheritance purposes. |
| Your biological child, legally adopted by your spouse | Yes. Adoption by your spouse does not sever your ties, and the child remains your child. |
| A foster child or stepchild you never legally adopted | No. |
| A child born outside marriage, where you are the mother | Yes. |
| A child born outside marriage, where you are the father | Only if paternity is established in one of the ways described below. |
| A child you conceived who was born after your death | Yes, if the child was in utero within 24 months of your death or born within 33 months of it, and the other conditions of EPTL 4-1.3 are met. |
| A child conceived through artificial insemination using your genetic material | Yes, if you consented to the use of your genetic material after your death and the consent was made within seven years of your death. |
A child born outside marriage inherits from the father if any one of the following is true: a court order made during the father’s lifetime declared him the father; the father executed an acknowledgement of paternity and filed it where the child’s birth certificate was registered; the father signed a document acknowledging paternity before one or more witnesses and a notary public and filed it with the putative father registry; the father openly and notoriously acknowledged the child as his own during his lifetime; or paternity is established by clear and convincing evidence, including DNA evidence.
Why Heirs at Law Matter When There Is a Will
Heirs at law are the people who inherit when there is no will. They matter when there is a will too. Heirs at law are necessary parties to the probate of a will: they are entitled to notice of the probate proceeding and have the right to object to it. Unless an heir consents to the probate, the court has to issue a citation to that heir before it acquires jurisdiction to admit the will.
If you are an heir at law with questions about your share, or an executor or administrator who needs to identify and give notice to the distributees, we can help. We appear in the Surrogate’s Courts of New York, Kings, Queens, Bronx, Richmond, Nassau, Suffolk and Westchester counties. Call us at 212-233-1233 or email [email protected].
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].
