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Heirs at Law

heirs at law

Heirs at law are called distributees in New York. Heirs at law are the persons entitled to inherit from the decedent when the decedent dies without a will (also called intestate). Usually, the heirs at law are the decedent’s closest living relatives. The preference and order of priority on who gets to inherit from the decedent when he dies without a will is provided in EPTL § 4-1.1.

When there is a will, the will is followed. In New York, a decedent can omit heirs at law from his will, except for the spouse. For more information on a spouse’s rights not to be omitted from a will, you can click here.

When heirs at law are omitted from the will, these omitted heirs usually object to the probate of a will, because if the will is denied probate, they inherit from the estate of the decedent intestate.

Heirs at law’s shares

Under New York law, when a person dies, the following will inherit the estate:

Survived by: Intestate Share
Spouse but no children* The entire estate to spouse
Children* but no spouse The Entire estate divided among the children
Spouse and children* $50,000 + 1/3 of the remaining balance to the spouse, the 2/3 remaining balance to the children, by representation
No spouse, no children*, but with one or both parents The entire estate to the parents or surviving parent
No spouse, no children*, no parents, but with siblings The entire estate goes to the siblings or their children, by representation
No spouse, no children*, no parents, no parents’ children*, but with 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.

When a person entitled to inherit (an heir at law) dies before the decedent (who did not leave a will), that person’s descendants, if there are any, step into the ascendant’s place to inherit from the decedent by representation. For example, you are divorced with three children, A, B, and C. When you died, C was already dead, but C had children, D and E. Because C is entitled to inherit from you as your child but has predeceased you, C’s children, D and E, take C’s place and inherit from you.

Computing D and E’s share in this case can be more complex because the default rule in New York is that the descendants who take the place of an ascendant inherit by representation. EPTL § 1-2.16 defines distribution by representation. The descendants nearest in degree to the ascendant receive equal shares. However, if a descendant or descendants have predeceased the deceased ascendant, the shares of the predeceased descendants are combined and the predeceased descendants’ issue all receive an equal share.

In the example above, if you died with a net estate of $90,000 and C predeceased you, A and B will get $30,000 each, while D and E, who take the place of C, will get $15,000 each.

This is straightforward. It becomes more complex when two children predecease. For example, if B and C predeceased you, with B having only one child, F, and C having two children, D and E, the sharing will be: A (who hasn’t predeceased) gets $30,000. D, E, and F, who are all descendants in the same degree (all are your grandchildren), will receive equal shares. They don’t necessarily step in to their parent’s shoes. Thus, D, E, and F will share the remaining $60,000 (the combined share of B and C), and each will get $20,000.

If all your children are living when you die, your children’s children are not entitled to inherit from you.

Determining who is an heir at law

Determining who the children are for purposes of identifying the heirs at law is easy when we are talking about marital children (children born within a marriage). However, when the child is a foster or stepchild, adopted, placed for adoption, born outside of marriage, born after the decedent died, or born through artificial insemination, questions and issues may arise. Here are the general rules:

  • A child you have adopted is considered your child and is entitled to a share like a biological child.
  • A child you have placed for adoption and is legally adopted by another family is not your child anymore and is not entitled to inherit from you.
  • If your spouse legally adopted your biological children, then your familial ties with your biological children are not severed and they are still considered your children, entitled to inherit from you.
  • A foster child or stepchild that you never legally adopted is not your child and thus, not entitled to inherit from you.
  • If the child was born outside of marriage, the child is entitled to inherit from you if you are the mother.
  • If the child was born outside of marriage and you are the father, the child can only inherit if:
    1. a court order was made during your lifetime, declaring you as the father; or
    2. you executed an acknowledgement of paternity and filed it where your child’s birth certificate was registered; or
    3. you signed a document acknowledging paternity before one or more witnesses and before a notary public, filed with the putative father registry; or
    4. you openly and notoriously acknowledged the child as your own during your lifetime; or
    5. paternity is established by clear and convincing evidence, including DNA evidence.
  • If you conceived the child but the child was born after you died, the child is entitled to inherit if the child was in utero within two years of your death or born within three years of it.
  • If the child was conceived through artificial insemination, the child is entitled to inherit if you consented that your genetic material can be used even after your death, and this consent was made within seven years of your death.

Importance of heirs at law in testate succession

As previously discussed, heirs at law are important when a person dies without a will because the heirs at law are the persons entitled to inherit. On the other hand, heirs at law are also important when a person dies with a will because these heirs at law are entitled to be notified of the probate proceedings and have the right to object to the probate of the will. Without their consent to the probate of the will, they need to be issued a citation by the court for the court to acquire jurisdiction. Heirs at law are considered necessary parties in the probate of a will.

If you are an heir at law who has succession questions or issues regarding the death of a loved one, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.