What Happens When a Relative Dies Without a Will in New York

If your relative died without a will in New York, the Estates, Powers and Trusts Law decides who inherits, and the Surrogate's Court decides who is put in charge. The family does not get a vote, and a promise the decedent made at the kitchen table carries no weight. This guide is written for the surviving relative, not for the administrator. It covers what to do in the first weeks, how to check whether a will exists, who counts as an heir, how much each heir receives in dollars, what happens when relatives are missing or unknown, and how long you should expect to wait before you see money.

For the court filing itself, including the petition, the bond, and limited letters, see our separate guides on estate administration and letters of administration. This page does not repeat that material.

Written by Albert Goodwin, Esq., a New York estate attorney. Statutory citations link to the official text on nysenate.gov.

The First 30 Days After a Relative Dies Intestate

Order more death certificates than you think you need

For a death in the five boroughs, certified copies come from the NYC Department of Health and Mental Hygiene. Outside the city, the local registrar in the town or city where the death occurred issues them. Banks, insurers, pension plans, the DMV and the Surrogate's Court each want a certified copy, and some will not return it. Ten copies is a reasonable starting number.

Search for a will before you assume there is none

A surprising number of "intestate" estates turn out to have a will in a drawer. Before anyone files for letters of administration, check these places:

• The home: desks, filing cabinets, a fireproof box, the freezer, and the backs of picture frames. Look for the original, not a photocopy. New York courts treat a missing original that was last in the decedent's possession as presumptively revoked, so a copy alone creates a serious problem.
• The decedent's lawyer or accountant: law firms routinely hold original wills in their vaults. Old checkbook registers and tax returns often show who the decedent used.
• The Surrogate's Court: under SCPA 2507, a person may deposit a will with the Surrogate's Court of the county where they live for safekeeping during their lifetime. Ask the clerk of the Surrogate's Court in the county of the decedent's domicile to search the will index. There is a small fee.
• The safe deposit box: a bank will not let you open a box in the decedent's sole name on your word. Under SCPA 2003, you petition the Surrogate's Court for an order permitting the box to be opened in the presence of a bank officer. If a will is found, the bank delivers it to the court. A burial plot deed and life insurance policies may be released to the petitioner. Nothing else leaves the box until a fiduciary is appointed.

If a will turns up later, the administration can be undone. That scenario is covered below.

Secure the property, but do not touch it

You may change the locks on a home the decedent owned alone if you are a distributee with a right to possession, and you should remove perishables and anything that could be stolen. Do not sell, give away, or divide anything. Do not use the decedent's debit card or write checks on the decedent's account, even to pay the decedent's own bills. A bank account in a dead person's sole name is frozen as a matter of law, and spending from it before letters issue can be treated as conversion. If you pay for the funeral yourself, keep every receipt. Reasonable funeral expenses are the first-priority claim against the estate and are reimbursed before any heir receives a share. For a fuller discussion of who may enter the home and when, see access to a house after death.

Sort the assets into two piles

The intestacy statute governs only probate assets: property in the decedent's sole name with no beneficiary designation. Everything else passes by its own terms, regardless of who the heirs are:

• Joint accounts with right of survivorship: pass to the surviving joint owner (Banking Law 675), unless it can be shown the account was opened for convenience only.
• "In trust for" (Totten trust) accounts: pass to the named beneficiary under EPTL 7-5.2.
• Life insurance, IRAs, 401(k)s, annuities, transfer-on-death securities: pass to the named beneficiary. Only if no beneficiary is named, or the named beneficiary predeceased, does the asset fall into the probate estate.
• Real property owned jointly or as tenants by the entirety: passes to the surviving co-owner.
• Assets titled in a trust: pass under the trust instrument.

A parent who put one child on every account as a joint owner has, in practical effect, left that child everything, and the other children have no intestate claim to those accounts. See bank accounts with no beneficiary and joint accounts at death.

Who Is a Distributee Under EPTL 4-1.1

New York calls an intestate heir a "distributee" (EPTL 1-2.5). EPTL 4-1.1 lists them in order. The first class with a living member takes the entire probate estate, and no one further down receives anything.

1. Spouse and issue (children, grandchildren, and so on): the spouse takes $50,000 plus one-half of the balance; the issue take the other half by representation.
2. Spouse, no issue: the spouse takes everything.
3. Issue, no spouse: the issue take everything by representation.
4. Parents, no spouse and no issue: the surviving parent or parents take everything.
5. Issue of parents (siblings, nieces, nephews), none of the above: they take everything by representation.
6. Grandparents and their issue (aunts, uncles, first cousins): one-half to the paternal side, one-half to the maternal side. If one side has no survivors, that side's half goes to the other side.
7. Great-grandchildren of grandparents (first cousins once removed): per capita, split between the paternal and maternal sides in the same way. This is the outer limit. Second cousins and more remote relatives do not inherit.
8. The State of New York: if no distributee exists, the estate escheats.

Three definitions trip up families. "Spouse" means a legally married spouse, including a same-sex spouse. New York abolished common-law marriage in 1933, but it recognizes a common-law marriage validly formed in a state that permits it. Domestic partners, fiancés, and long-term companions are not spouses and inherit nothing by intestacy. "Issue" means descendants by blood or adoption, not stepchildren. And "parents" means legal parents, so a stepparent who raised the decedent from infancy but never adopted is not a distributee.

How Much Each Relative Receives: Worked Examples

Every figure below is the net probate estate, meaning what is left after funeral expenses, debts, administration costs, and the surviving spouse's exempt property (explained in the next section) have come off the top.

Example 1: spouse and three children, $300,000

The spouse takes the first $50,000, leaving $250,000. The spouse takes half of that, $125,000, for a total of $175,000. The three children split the other $125,000 equally, $41,666.67 each. It does not matter whether the children are from this marriage or a prior one, or whether they are adults.

Example 2: spouse and two children, $350,000

Spouse: $50,000 plus $150,000, for $200,000. Each child: $75,000. Now suppose the same family but the probate estate is only $40,000 because the house and retirement accounts passed outside the estate. The spouse takes the entire $40,000 and the children receive nothing from the probate estate.

Example 3: no spouse, three children, one predeceased leaving two children, $600,000

Under EPTL 1-2.16, the estate is divided at the nearest generation with a living member, here the children. Three shares of $200,000. Living children A and B take $200,000 each. Deceased child C's $200,000 share passes to C's two children, $100,000 each.

Example 4: why New York's "by representation" is not strict per stirpes

Same $600,000 estate, but now two children predeceased: C left one child, and D left three children. Living child A takes one-third, $200,000. The remaining $400,000 is then pooled and divided equally among all four grandchildren, $100,000 each. Under a strict per stirpes scheme, C's only child would have taken $200,000 and D's three children $66,667 each. New York intestacy does not work that way. Grandchildren in the same generation are always treated alike, regardless of how many siblings they have.

Example 5: no spouse or children, parents dead, siblings and a half-sibling, $240,000

The decedent had two full siblings and one half-brother from the father's second marriage. Under EPTL 4-1.1(b), relatives of the half blood are treated exactly as relatives of the whole blood. Each of the three takes $80,000. If one full sibling had predeceased leaving two children, those nieces or nephews would split their parent's $80,000.

Example 6: only cousins survive, $500,000

The decedent, a widow with no children, siblings, or living parents or grandparents, left two first cousins on her father's side and one first cousin on her mother's side. Half, $250,000, goes to the paternal side and is split $125,000 each. The other $250,000 goes to the single maternal cousin. If the maternal side had no survivors, the paternal cousins would share the entire $500,000. A second cousin, or a first cousin's grandchild, takes nothing even if they were close to the decedent.

To run your own family's numbers, use the New York intestacy calculator.

Situations That Change Who Inherits

The surviving spouse's exempt property (EPTL 5-3.1)

Before the $50,000-plus-half formula is applied, EPTL 5-3.1 sets aside specific property for the surviving spouse (or, if there is no spouse, for children under 21): household furniture, appliances and clothing up to $20,000; books, family pictures and similar items up to $2,500; domestic animals and farm machinery up to $20,000; one motor vehicle up to $25,000; and cash or other personal property up to $25,000. The total can reach $92,500. These items are not part of the estate divided with the children.

A spouse who is disqualified (EPTL 5-1.2)

EPTL 5-1.2 strips the surviving spouse of any intestate share if: a final judgment of divorce or annulment was entered; the marriage was void (bigamy or incest); the survivor obtained an out-of-state divorce that New York does not recognize; a judgment of separation was entered against the survivor and was in effect at death; the survivor abandoned the decedent and the abandonment continued until death; or the survivor had a duty to support the decedent and failed to do so. A couple who simply lived apart for years without a court judgment remains married for inheritance purposes, and the estranged spouse takes the full spousal share, unless they signed a separation agreement containing a waiver of estate rights. Those waivers are common, so read the agreement.

Children born outside marriage (EPTL 4-1.2)

A child always inherits from the mother. A child inherits from a father who died intestate if, under EPTL 4-1.2, a court made an order of filiation during the father's life, the father signed an acknowledgment of paternity filed with the registrar, or paternity is proved by clear and convincing evidence. That evidence may include a genetic marker test, including testing of the decedent's other relatives, or proof that the father openly and notoriously acknowledged the child as his own. These disputes are decided at a kinship hearing in Surrogate's Court, and a child who was never acknowledged on paper can still prevail with DNA and testimony.

Adopted children and stepchildren (Domestic Relations Law 117)

An adopted child inherits from the adoptive parents and their relatives as a biological child would, and generally loses the right to inherit from birth parents. The main exception is a stepparent adoption: a child adopted by a birth parent's spouse keeps inheritance rights through that birth parent. A stepchild who was never adopted is not a distributee, no matter how long the relationship lasted or how the decedent referred to the child.

The 120-hour survivorship rule (EPTL 2-1.6)

Under EPTL 2-1.6, a person who does not survive the decedent by 120 hours is treated as having predeceased. If a husband dies in a car accident and his wife dies three days later, her estate does not take his spousal share; his property passes as if she were already dead. The rule does not apply if it would cause the estate to escheat to the State.

A parent who abandoned the child (EPTL 4-1.4)

A parent who abandoned the decedent, or who failed to support the decedent while the decedent was under 21, is disqualified from taking an intestate share from that child under EPTL 4-1.4. This comes up when an adult child dies young, often with a wrongful death recovery, and a parent who left decades ago reappears to claim half.

A relative who caused the death

New York has no slayer statute. The rule comes from Riggs v. Palmer, 115 N.Y. 506 (1889): a person who intentionally kills the decedent may not inherit from the victim. The Surrogate's Court applies it in intestacy, and a criminal conviction is not required, although it settles the question.

Children conceived before death or by assisted reproduction

A child conceived before the decedent's death and born alive afterward inherits as if born during the decedent's lifetime (EPTL 4-1.1(c)). A child conceived after death from the decedent's genetic material inherits only if the strict written-consent, notice and timing conditions of EPTL 4-1.3 are met.

Who Will Be Put in Charge

The order of priority to serve as administrator under SCPA 1001 mirrors the order of inheritance: spouse, then children, then grandchildren, then parents, then siblings, then other distributees. Only a distributee, or a person nominated by distributees, may be appointed. A person under 18, a non-domiciliary alien without a resident co-fiduciary, or a convicted felon is ineligible under SCPA 707 (see administrators with felony records). If no eligible relative is willing to serve, the Public Administrator of the county is appointed.

If the decedent left $50,000 or less in personal property and no real property in sole name, the estate qualifies for the simplified voluntary administration procedure under SCPA Article 13, using the Surrogate's Court small estate form. Everything else requires full administration. For how the petition, waivers, citations, bond and filing fees under SCPA 2402 work, see letters of administration explained and the affidavit of heirship.

When Heirs Are Missing, Estranged, or Unknown

Estrangement does not matter. A brother who has not spoken to the decedent in 30 years inherits the same share as one who visited every Sunday. What does matter is whether the court can be satisfied that it knows who all the distributees are.

When the family tree is uncertain, the court will not release money to anyone. Typical triggers are a decedent who never married and had no children, a decedent whose siblings scattered across other countries, a rumored child from a prior relationship, or a family where no one can say with certainty whether a grandparent's other children had issue. In these cases:

• The Public Administrator usually serves: in the five boroughs under SCPA Article 11, and in other counties under Article 12. The relatives then prove their kinship in the Public Administrator's accounting proceeding rather than by petitioning for letters themselves.
• A guardian ad litem is appointed: under SCPA 403, the court appoints a lawyer to represent unknown and missing distributees. The guardian's fee is paid from the estate.
• A kinship hearing is held: the claimants carry the burden of proving their relationship and, just as important, proving that no one with a superior or equal claim exists. Evidence includes birth, marriage and death certificates, census records, naturalization files, obituaries, church and cemetery records, and testimony from a genealogist and from disinterested witnesses.
• The three-year rule: under SCPA 2225, if a distributee's existence or whereabouts remains unknown after a diligent search, the court may determine that no other distributees exist once at least three years have passed since the death. Until then, the unknown person's possible share is held back.
• Unclaimed shares are deposited: money for a distributee who cannot be found is paid into the court or to the State Comptroller, where it can be claimed later on proof of kinship.

Kinship cases are the slowest and most document-heavy matters in Surrogate's Court. Starting the genealogical work early, before the Public Administrator's accounting is filed, saves months.

How Long Until You Receive Your Share

No distributee is entitled to a check until someone has authority to write one. If every distributee signs a waiver and consent, letters of administration can issue within weeks of filing. If a relative must be served with a citation, especially overseas, expect several months. Once letters issue, creditors have seven months under SCPA 1802 to present claims, and an administrator who distributes before that period ends is personally exposed if a claim surfaces. A simple, cooperative estate therefore typically closes nine to eighteen months after death. Kinship cases and contested appointments run for years. A partial distribution before the estate closes is possible when the administrator holds a clear reserve and the recipient signs a receipt and refunding agreement. For a month-by-month picture, see the sample NYC timeline.

Real property follows a different rule. Title to a house in the decedent's sole name vests in the distributees at the moment of death, not when letters issue, subject to the administrator's power to sell it if needed to pay debts (EPTL 11-1.1). In practice you still cannot sell or refinance without either letters of administration or a recorded proof of heirship acceptable to a title company. If several relatives inherit the house together and one of them is living in it, see a sibling living rent-free in the inherited house and partition of inherited real property.

Will Taxes Reduce What You Receive

New York has no inheritance tax; nothing is owed by you personally for receiving an intestate share. The New York estate tax applies only to estates above the basic exclusion amount, which is indexed each year: $6,940,000 for deaths in 2024 and $7,160,000 for deaths in 2025. Estates that exceed the exclusion by more than five percent lose the exclusion entirely and are taxed from the first dollar, the so-called cliff. The federal estate tax exemption is far higher, $13,990,000 for 2025 deaths. For the overwhelming majority of intestate estates, no estate tax return is due.

Income tax is a separate question. Inherited stocks, real estate and other capital assets take a stepped-up basis equal to their value at death under Internal Revenue Code 1014, so a quick sale produces little or no capital gain. Inherited traditional IRAs and 401(k)s do not; withdrawals are taxable income to the beneficiary. If the estate earns income during administration, the administrator files fiduciary income tax returns before distribution.

What If a Will Turns Up After Letters of Administration Issue

It happens. A will surfaces in a lawyer's vault or a relative's closet a year into administration. Anyone holding a will must produce it, and the Surrogate's Court can compel production under SCPA 1401. The executor named in the will, or any interested person, petitions for probate. If the will is admitted, the court revokes the letters of administration under SCPA 719, the administrator accounts for everything received and spent, and the estate is distributed under the will rather than under EPTL 4-1.1. Acts the administrator performed in good faith before revocation, such as paying funeral bills and valid debts, generally stand. A distributee who already received an intestate share that the will gives to someone else can be required to return it. If you know a will exists and say nothing, you risk liability to the people the will favors.

When You Need a Lawyer

Many small, cooperative estates are handled by the family without counsel. You should speak with an estate attorney before filing anything if:

• there is any doubt about who the distributees are, including a possible non-marital child, a half-sibling, or relatives abroad;
• the decedent was separated but not divorced, or there is a question whether a foreign divorce is valid in New York;
• more than one relative wants to serve, or you want to object to the relative who is applying;
• a sibling controlled the decedent's accounts before death or was added as a joint owner late in life;
• the probate estate includes real property owned with others, or a business;
• a wrongful death or personal injury claim exists, which requires a fiduciary with specific authority and a court-approved distribution among the distributees under EPTL 5-4.4;
• you are the one serving and want to avoid personal liability for paying claims in the wrong order or distributing too early.

Frequently Asked Questions

Does a stepchild inherit when there is no will?

No. A stepchild inherits by intestacy only if the decedent legally adopted the child. The length of the relationship and the decedent's stated wishes do not change the result.

Does a live-in partner or fiancé inherit?

No. New York does not recognize common-law marriage formed within the state, and a domestic partner is not a spouse under EPTL 4-1.1. A partner may still receive property that was held jointly or that named the partner as beneficiary, and may have a claim for repayment of documented contributions to the decedent's property, but has no intestate share.

My relative promised me the house. Does that count?

Not unless it was in writing and signed. Under EPTL 13-2.1, an agreement to make a testamentary provision, or to leave property at death, is unenforceable unless it is in writing and subscribed by the person making it. An oral promise, even one made in front of witnesses, does not override EPTL 4-1.1.

My sibling is already living in the house and will not leave. What can I do?

If the house passed to the distributees jointly, you are co-owners from the date of death. A co-owner in exclusive possession may owe the others their share of fair rental value in certain circumstances, and any co-owner may bring a partition action to force a sale or buyout. See a beneficiary living in the inherited house.

Can I be paid for serving as administrator?

Yes. Under SCPA 2307, an administrator is entitled to statutory commissions: 5 percent on the first $100,000 received and paid out, 4 percent on the next $200,000, 3 percent on the next $700,000, 2.5 percent on the next $4,000,000, and 2 percent above $5,000,000. Commissions are taxable income to the administrator. Many family administrators waive them because an inheritance is not taxable income while a commission is.

Do I inherit my relative's debts?

No. Debts are paid from the estate's assets in the order set by SCPA 1811. If the estate is insolvent, the creditors go unpaid; you do not pay them from your own funds, and you are not liable beyond any estate property you actually received. Jointly held debt and debt you co-signed are different.

Can I refuse my share?

Yes. Under EPTL 2-1.11 a distributee may renounce an intestate share by filing a written, acknowledged renunciation with the court within nine months of death. The renounced share passes as if you had predeceased the decedent, which usually means to your own children.

What if the decedent lived in New York but owned real estate in another state?

New York law governs the personal property wherever located and the New York real property. Real property in another state passes under that state's intestacy law and usually requires an ancillary proceeding there. See ancillary letters.

Speak With a New York Estate Attorney

If your relative died without a will and you are trying to work out who inherits, who should serve, or why the court will not release money, we can help. The Law Offices of Albert Goodwin represents distributees and administrators in Surrogate's Courts throughout New York City, Long Island, and Westchester, with offices in Manhattan, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].

This article is general information about New York law and is not legal advice for your situation. Dollar thresholds, exclusion amounts and fees change; confirm current figures against the linked statutes or with counsel.