How to Settle an Estate When There's No Will in New York

Last updated: June 2024. Reviewed by Albert Goodwin, Esq., a New York estate and probate attorney with offices in Manhattan, Brooklyn, and Queens.

When a New York resident dies without a will, they are said to have died intestate. There is no document naming an executor and no instructions on who inherits. Instead, New York's Estates, Powers and Trusts Law (EPTL) decides who receives the property, and the Surrogate's Court Procedure Act (SCPA) decides who is appointed to administer the estate. This page is our complete guide to settling an intestate estate under New York law. For deeper detail on narrower topics, we link to companion pages throughout.

Who Inherits When There's No Will in New York (EPTL 4-1.1)

New York's intestacy statute, EPTL § 4-1.1, sets fixed shares depending on which relatives survive the decedent. The administrator does not get to choose who inherits — the statute controls. The most common scenarios are:

• Spouse and children (issue): The surviving spouse receives the first $50,000 plus one-half of the remaining estate. The children share the other half equally. If a child died before the decedent, that child's share passes to their own children (the decedent's grandchildren) by representation.
• Spouse, no children: The surviving spouse inherits the entire estate.
• Children, no spouse: The children inherit everything in equal shares.
• No spouse and no children: The estate passes to the decedent's parents; if no parents survive, to the decedent's siblings (and the children of deceased siblings by representation).
• No spouse, children, parents, or siblings: The estate passes to more remote relatives such as grandparents, aunts, uncles, and first cousins, following the order set out in EPTL § 4-1.1. If no eligible relatives can be located, the property may eventually escheat to the State of New York.

Note that a legally married spouse can lose inheritance rights under EPTL § 5-1.2 in certain situations — for example, where there was a final decree of divorce, or where the spouse abandoned the decedent and that abandonment continued until death. Unmarried partners and stepchildren who were never legally adopted have no intestate share under New York law, regardless of how close the relationship was.

Step 1: Identify Probate vs. Non-Probate Assets

Only probate assets — property the decedent owned in their sole name with no beneficiary designation — pass through the intestate estate and the Surrogate's Court. Many assets bypass the estate entirely and go directly to a named recipient. These non-probate assets include:

• Real estate and bank accounts held as joint tenants with right of survivorship or as tenants by the entirety (married couples);
• Retirement accounts (IRA, 401(k)) and life insurance with a living designated beneficiary;
• Payable-on-death (POD) and transfer-on-death (TOD) accounts;
• Property held in a living trust.

This distinction matters enormously. A person could have a multimillion-dollar net worth and still leave only a small probate estate if most of their wealth was held jointly or with beneficiary designations. The reverse is also true: a modest-seeming estate may require a full administration if the decedent owned a solely titled home or brokerage account.

Step 2: Determine Which Procedure Applies

New York offers two main pathways for an intestate estate, depending on the size and type of the probate assets.

Voluntary (Small Estate) Administration — SCPA Article 13

If the decedent's probate personal property is worth $50,000 or less and there is no real property in the estate, you may qualify for the simplified voluntary administration procedure under SCPA Article 13. (This personal-property threshold is set by SCPA § 1301; you should confirm the current figure with the court or an attorney, as the legislature can adjust it.) A close relative files an Affidavit in Relation to Settlement of Estate Under Article 13 with the Surrogate's Court and is appointed Voluntary Administrator. This process is faster and far less expensive than a full administration — the filing fee is currently $1.00 — but it cannot be used if the decedent owned real estate in their sole name.

Important: even a small bank account belonging solely to the decedent can require this filing, because banks generally will not release funds without Surrogate's Court papers once the account exceeds the institution's informal limit.

Full Administration — Letters of Administration

If the estate exceeds the small-estate threshold, or includes any solely owned real property, you must petition the Surrogate's Court for Letters of Administration. These letters are the court's official authorization for a named person (the administrator) to collect assets, pay debts, and distribute the remainder to the intestate heirs. The order of priority for who may serve is set by SCPA § 1001:

1. The surviving spouse;
2. The children;
3. The grandchildren;
4. The decedent's parents;
5. The siblings;
6. More remote distributees in the order of their relationship.

Where two or more people share the same level of priority (for example, several adult children), any of them may apply, and the others generally must either consent (renounce) or be served with process so the court can hear any objection. We cover this appointment process in depth on our companion pages, attorneys for Letters of Administration and becoming the administrator of an estate without a will.

Step 3: The Letters of Administration Filing Process in New York

Here is the step-by-step process to obtain Letters of Administration in a New York Surrogate's Court:

1. Determine the proper county. The petition is filed in the Surrogate's Court of the county where the decedent was domiciled at death — for example, New York County (Manhattan), Kings County (Brooklyn), Queens County, Bronx County, or Richmond County (Staten Island).
2. Obtain a certified death certificate and gather basic information about the decedent's assets, debts, and surviving relatives.
3. Prepare the Petition for Letters of Administration (court form, which identifies the decedent, the distributees, and the estimated value of personal and real property).
4. Prepare supporting documents, which commonly include a family tree affidavit (used to establish the heirs, especially where there is no surviving spouse or child), renunciations and consents or waivers from any persons with equal or higher priority who are not serving, and a designation of clerk for non-resident administrators.
5. Serve citation on any distributee who has not signed a waiver and consent, giving them the chance to object.
6. Address the bond requirement. Under SCPA § 805 and § 806, the court may require the administrator to post a surety bond to protect the estate, unless all distributees waive the bond or the circumstances allow the court to dispense with it. A bond is more likely to be required when the administrator lives out of state or when distributees are minors.
7. The court reviews and issues Letters of Administration. Once issued, the letters empower the administrator to act on the estate's behalf.

Surrogate's Court Filing Fees

The filing fee for a full administration petition is set by SCPA § 2402 on a sliding scale based on the value of the estate, ranging from $45 for very small estates up to $1,250 for estates of $500,000 or more. Voluntary (small estate) administration costs only $1.00 to file. Additional costs may include certified copies of letters, certification of documents, and any surety bond premium.

Step 4: Administer and Settle the Estate

Once appointed, the administrator's duties typically proceed in this order:

• Marshal the assets: open an estate bank account, collect funds, secure real property and personal belongings, and obtain date-of-death valuations.
• Notify creditors and pay valid debts and expenses in the statutory order of priority set by SCPA § 1811. Funeral expenses and administration costs generally come first; an administrator who pays beneficiaries before satisfying valid debts can be held personally liable.
• File required tax returns, including the decedent's final income tax return, estate income tax returns, and — for larger estates — a New York estate tax return (the New York estate tax exemption is indexed and changes; confirm the current threshold).
• Distribute the net estate to the intestate heirs in the exact shares required by EPTL § 4-1.1.
• Account to the beneficiaries, either through an informal accounting with releases or a judicial accounting in Surrogate's Court.

How Long Does It Take?

A straightforward, uncontested administration where all distributees sign waivers and consents can often produce Letters of Administration within a few weeks to a couple of months, with the full estate wrapping up in roughly 7 months to a year (creditors generally have 7 months from the issuance of letters to present claims). Estates that require citation and service, involve unknown or hard-to-locate heirs, include real property to be sold, or face disputes among the distributees can take a year or more. For a detailed walkthrough of the stages, see our sample NYC probate timeline.

What If the Heirs Are Unknown or Hard to Prove?

When there is no spouse or child and the estate passes to siblings, nieces, nephews, or cousins, the court will scrutinize proof of kinship carefully. An affidavit of heirship or family tree affidavit, and sometimes a kinship hearing, may be required to establish exactly who the legal distributees are. Locating and serving all distributees is one of the most common reasons an intestate administration is delayed.

Frequently Asked Questions

Who inherits if there is no will in New York?

New York's intestacy statute, EPTL § 4-1.1, controls. A surviving spouse with no children inherits everything; a spouse with children takes the first $50,000 plus half the remainder, with the children sharing the rest. If there is no spouse, the children inherit; if there are no children, the estate passes to parents, then siblings, then more remote relatives.

Can siblings serve as administrator?

Yes. If the decedent left no spouse, children, grandchildren, or parents, siblings have priority to serve under SCPA § 1001. Where several siblings have equal priority, one may apply while the others either consent or are served with citation.

How long does it take to get Letters of Administration in New York?

An uncontested matter with signed waivers and consents may produce letters in a few weeks to a couple of months. Matters requiring service of citation, kinship proof, or contested between heirs take considerably longer.

What happens if the heirs disagree about who should be administrator?

Any distributee with equal or higher priority can object when served with citation. The Surrogate's Court resolves the dispute and may appoint the qualified person, require co-administrators, or in some cases appoint the Public Administrator.

Does the small-estate (voluntary administration) procedure cover real estate?

No. SCPA Article 13 voluntary administration is available only when the probate personal property is at or below the statutory limit and the decedent owned no real property in their sole name. Any solely owned real estate requires a full administration.

Can an unmarried partner inherit if there is no will?

No. Under New York intestacy law, an unmarried partner has no statutory right to inherit, no matter how long the relationship lasted. Only a legally married spouse and relatives recognized by EPTL § 4-1.1 inherit.

Speak With a New York Estate Attorney

Settling an estate without a will in New York means navigating the Surrogate's Court, the bond and citation rules, creditor priorities, and the strict distribution shares of EPTL § 4-1.1 — often while grieving. An experienced attorney can determine whether the estate qualifies for the simplified Article 13 procedure or requires full Letters of Administration, prepare the petition and supporting affidavits, and help you avoid personal liability.

If you need assistance, the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY, and Queens, NY. Call us at 212-233-1233 or email [email protected].

This article is for general information about New York law and is not legal advice. Statutory dollar thresholds and tax exemptions change periodically; confirm current figures with the Surrogate's Court or a qualified attorney before relying on them.