Settling an Estate With No Will in New York: The Intestate Administration Guide

Written by Albert Goodwin, Esq., an estate attorney admitted to practice in New York who represents administrators, distributees and objectants in the Surrogate's Courts of New York City, Long Island and Westchester. Last reviewed: [month year]. See about Albert Goodwin.

A New York resident who dies without a will dies intestate. No executor is named and no document says who inherits. Two statutes fill the gap. The Estates, Powers and Trusts Law (EPTL) fixes who inherits and in what shares. The Surrogate's Court Procedure Act (SCPA) fixes who may be appointed to run the estate and how. This page is the single reference on our site for that process. The narrower pages we link to below cover one issue each (the affidavit of heirship, successor administrators, removal) and are not repeats of this one.

First Question: Does Anything Need to Go Through Court at All?

Before anyone files a petition, sort the decedent's property into two piles. Only probate assets, meaning property titled in the decedent's name alone with no beneficiary designation, pass through the intestate estate. Everything else moves by its own paperwork and never touches the Surrogate's Court.

• Non-probate assets: joint bank accounts and real property held as joint tenants with right of survivorship or as tenants by the entirety; IRAs, 401(k)s and life insurance with a living named beneficiary; payable-on-death and transfer-on-death accounts; anything already inside a living trust.
• Probate assets: a solely owned house, co-op or condo; bank and brokerage accounts in the decedent's name alone; a car titled to the decedent; a refund or paycheck owed to the decedent; a lawsuit the decedent could have brought.

Two practical shortcuts exist for small probate items. SCPA 1310 permits (but does not require) a bank or employer to release limited sums to a surviving spouse or close relative on an affidavit, generally up to $30,000 after thirty days have passed since death, without any court filing. Each bank applies its own policy, and many will not release funds under this section at all. For accounts that exceed what the bank will release, see what happens to a bank account at death with no beneficiary in New York.

Who Inherits Under EPTL 4-1.1

The administrator has no discretion over who receives the estate. EPTL 4-1.1 sets the shares by reference to which relatives survived the decedent:

• Spouse and children (issue): the spouse takes $50,000 plus one-half of the balance; the children divide the other half. A predeceased child's share passes to that child's own children by representation (EPTL 1-2.16).
• Spouse, no issue: the spouse takes everything.
• Issue, no spouse: the children take everything, by representation.
• No spouse, no issue: the parents take everything; if neither parent survives, the siblings and the children of deceased siblings take by representation.
• No parents or siblings or their issue: one-half to the paternal grandparents or their issue, one-half to the maternal grandparents or their issue, stopping at first cousins. If one side has no survivors, the other side takes the whole.
• No first cousins or closer: great-grandchildren of grandparents (first cousins once removed) take under EPTL 4-1.1(a)(7). If no one in any of these classes can be proven, the property eventually escheats to the State under the Abandoned Property Law.

Several rules change the headcount. Half-blood relatives inherit as whole-blood relatives (EPTL 4-1.1(b)). An adopted child inherits from the adoptive parents, and generally not from the biological parents, under Domestic Relations Law 117. A non-marital child inherits from the mother automatically and from the father only if paternity is established in one of the ways listed in EPTL 4-1.2 (an order of filiation, an acknowledgment of paternity, a DNA test, or clear and convincing evidence coupled with open acknowledgment). A child conceived before death and born alive afterward inherits as if born during the decedent's life. Stepchildren who were never adopted and unmarried partners of any duration receive nothing under the statute.

On top of the intestate share, a surviving spouse (or minor children if there is no spouse) receives exempt property under EPTL 5-3.1, which sets aside, outside the estate, categories of household furniture, a vehicle, books and personal items, and up to $25,000 in cash or other personal property, each category capped by the statute. This set-off comes out before the 4-1.1 shares are computed.

A legally married spouse can be disqualified under EPTL 5-1.2 if there was a final divorce or annulment, a judgment of separation against the surviving spouse, abandonment that continued until death, or a failure to support. Disqualification is litigated, not assumed, and the burden falls on the person claiming it.

Which Procedure Applies

Voluntary Administration (SCPA Article 13)

If the probate personal property is worth $50,000 or less, not counting EPTL 5-3.1 exempt property, and the decedent owned no real property in sole name, a distributee may file the Affidavit in Relation to Settlement of Estate Under Article 13 (OCA Form SE-1A) and be designated voluntary administrator. The filing fee is $1.00. The court issues a certificate for each listed asset, and the voluntary administrator collects that asset, pays debts, and distributes. The ceiling in SCPA 1301 is a legislative figure and can change; confirm it with the court before relying on it.

Full Administration (Letters of Administration)

If the personal property exceeds the Article 13 limit, or if the decedent owned any real property in sole name, someone must petition for Letters of Administration. A house or co-op alone forces a full administration even if there is no cash. The letters are the court's authorization for the administrator to collect, pay and distribute.

Who May Serve as Administrator (SCPA 1001 and 707)

SCPA 1001 ranks the people entitled to letters: the surviving spouse, then children, then grandchildren, then a parent, then siblings, then any other distributee, with preference among equals to the person entitled to the largest share. Where several people share the same rank, one may petition and the others must either sign a Waiver of Citation, Renunciation and Consent (OCA Form A-3) or be served with citation under SCPA 1003 so they can object. Distributees of lower rank who are not cited receive a Notice of Application under SCPA 1005.

SCPA 707 bars some people regardless of rank: minors, incapacitated persons, felons, non-domiciliary aliens (unless serving with a New York resident co-fiduciary), and anyone the court finds unfit because of substance abuse, dishonesty, improvidence, want of understanding, or inability to read and write English. An out-of-state United States citizen may serve. A conviction is addressed on its own page: can a felon serve as administrator or executor in New York.

If no eligible distributee petitions, or if the nearest relatives are cousins whose kinship is not yet proven, the court appoints the Public Administrator (SCPA 1001(8); Article 11 in the five boroughs, Article 12 in Nassau, Suffolk, Westchester and other counties). The Public Administrator charges statutory commissions and counsel fees that come out of the estate, so a qualified family member who moves first usually saves the estate money.

The Forms You Actually File

The Office of Court Administration publishes the official forms on the Unified Court System's Surrogate's Court forms page. Individual courts add their own checklists, and clerks reject petitions that use the wrong version. The standard package for an uncontested intestate administration is:

• Petition for Letters of Administration (OCA Form A-1): verified before a notary; identifies the decedent, domicile, date and place of death, every distributee with address and relationship, estimated personal property and improved and unimproved real property, and whether the decedent or any distributee received Medicaid or public assistance.
• Certified death certificate: the original with raised seal, not a photocopy.
• Affidavit of Heirship (family tree affidavit): sworn by a disinterested person who knew the family, tracing the decedent's marriages, children and, where relevant, parents, siblings and their issue. Required whenever the nearest distributees are more remote than children, and requested by many clerks in every case. The requirements are covered on their own page: affidavit of heirship in New York.
• Waiver of Citation, Renunciation and Consent (OCA Form A-3): one from each distributee of equal or higher priority who is not petitioning, notarized, and usually including a waiver of bond.
• Citation (OCA Form A-4) and affidavit of service: for any distributee who will not sign.
• Notice of Application (OCA Form A-2): mailed to lower-ranked distributees.
• Designation of Clerk for Service of Process: required of any petitioner who lives outside New York (SCPA 708).
• Bond: either a surety bond in the amount the court sets or written waivers from every adult distributee asking that bond be dispensed with.
• Decree Granting Letters (OCA Form A-6): proposed decree submitted for the Surrogate's signature.

Electronic filing through NYSCEF is available in the Surrogate's Courts and is mandatory for attorneys in many counties. Self-represented petitioners may still file on paper.

Filing Fees Under SCPA 2402

The fee for an administration petition is based on the gross value of the probate estate stated in the petition:

• Under $10,000: $45
• $10,000 to under $20,000: $75
• $20,000 to under $50,000: $215
• $50,000 to under $100,000: $280
• $100,000 to under $250,000: $420
• $250,000 to under $500,000: $625
• $500,000 and over: $1,250

Each certificate of letters costs $6. Banks, brokerages, title companies and the DMV each want a certificate dated within six months, so order several. A surety bond premium, if a bond is required, is a separate annual cost paid to the bonding company and reimbursed from the estate.

Worked Example: Spouse, Two Adult Children, $400,000 Probate Estate

Assume a Queens decedent leaves a spouse and two adult children, a solely owned house worth $150,000 net of mortgage and $250,000 in a brokerage account in sole name. Retirement accounts naming the spouse pass outside the estate and are ignored here.

• Exempt property: the spouse first takes the EPTL 5-3.1 set-off (for example, the car and up to $25,000 in cash). For simplicity, assume $25,000 cash is set off, leaving $375,000.
• Spouse's share: $50,000 plus one-half of $325,000, or $212,500.
• Each child's share: one-half of $162,500, or $81,250.
• Filing fee: the $400,000 gross estate falls in the $250,000 to under $500,000 bracket, so $625.
• Who petitions: the spouse has first priority under SCPA 1001. Each child signs a Form A-3 waiving citation, consenting to the spouse's appointment, and waiving bond.
• Bond: with both adult children waiving and the spouse a New York domiciliary, the court will ordinarily dispense with bond. If a child refused to waive, the court would likely set bond at roughly the value of the personal property, here about $250,000, and the premium would be charged to the estate.
• Creditor window: the administrator should wait seven months from the date of the letters before distributing (SCPA 1802) to be protected against late claims.

Change one fact and the numbers move. If one child had died leaving two children of their own, that child's $81,250 would be split between the two grandchildren. If the decedent had no children, the spouse would take all $400,000 and no family tree affidavit would be needed beyond proof of the marriage.

The Five Reasons Clerks Reject Administration Petitions

In our practice these are the defects that most often send a petition back from the clerk's window:

1. No family tree affidavit, or one from the wrong person. The affiant must be disinterested, meaning not a distributee and not the spouse of one. A sibling swearing to the family tree in a sibling-only estate will be rejected.
2. Signatures from people who are not distributees. A stepchild, a long-term partner or a niece whose parent is still alive is not a distributee under EPTL 4-1.1. Including them as consenting parties, or listing them in the wrong paragraph, forces an amended petition.
3. Medicaid question left blank or the social services district not addressed. If the decedent received Medicaid after age 55, the petition must say so, and the local district (HRA in New York City, the county Department of Social Services elsewhere) must be cited or must sign a waiver. Courts will not issue letters until this is resolved.
4. Bond not addressed. Either a bond is filed or every adult distributee waives it in writing. A petition that is silent on bond, or that requests dispensing with bond while a minor or an unlocated distributee exists, will be held.
5. Wrong county. Venue is the county of the decedent's domicile at death (SCPA 205), which is where the decedent intended to make a permanent home, not necessarily the nursing home or hospital address on the death certificate. A Brooklyn resident who died in a Nassau facility is a Kings County estate. If the death certificate address is in a different county, expect to file an affidavit explaining domicile.

Where to File: Surrogate's Courts in the Metropolitan Area

Each Surrogate's Court has its own administration department, its own supplemental checklist, and its own backlog. Processing time for an uncontested petition with no defects has ranged in our experience from several weeks to several months, and it changes with staffing and caseload. Call the administration department of the specific court for current expectations before promising a timeline to a bank or a buyer.

• New York County (Manhattan): 31 Chambers Street, New York, NY 10007.
• Kings County (Brooklyn): 2 Johnson Street, Brooklyn, NY 11201.
• Queens County: 88-11 Sutphin Boulevard, Jamaica, NY 11435.
• Bronx County: 851 Grand Concourse, Bronx, NY 10451.
• Richmond County (Staten Island): 18 Richmond Terrace, Staten Island, NY 10301.
• Nassau County: 262 Old Country Road, Mineola, NY 11501.
• Suffolk County: 320 Center Drive, Riverhead, NY 11901.
• Westchester County: 111 Dr. Martin Luther King Jr. Boulevard, White Plains, NY 10601.

All five New York City counties, plus Nassau, Suffolk and Westchester, have a Public Administrator's office. Nassau and Suffolk courts are known for requiring notice to the county Department of Social Services in a broad range of cases. The New York City courts handle a high volume of kinship matters and have standing procedures for them. For readers in Brooklyn, see our Brooklyn estate practice.

After Letters Issue: Running the Estate

1. Collect and secure. Open an estate account under a new EIN, transfer sole-name accounts into it, change the locks and insurance on real property, and obtain date-of-death values for every asset. Questions about entering the decedent's home before letters issue are covered at access to a house after death and access to an apartment after death.
2. Pay in the statutory order. SCPA 1811 puts reasonable funeral expenses and administration expenses first, then debts with a preference under federal or state law, then taxes, then docketed judgments, then all other debts. An administrator who pays heirs before valid creditors answers for the shortfall personally.
3. Handle the Medicaid claim. Under Social Services Law 369(2)(b), the State may recover Medicaid paid for a recipient aged 55 or older from the recipient's probate estate. Recovery is deferred while there is a surviving spouse or a child under 21 or a blind or disabled child. The district files a claim with the administrator; it is paid in the SCPA 1811 order as a debt with a statutory preference. Non-probate assets are not reached under New York's current definition of estate.
4. File tax returns. The decedent's final Form 1040 and IT-201, fiduciary income tax returns (Form 1041 and IT-205) for each year the estate earns income, and a New York estate tax return (ET-706) if the gross estate exceeds the New York basic exclusion amount, which is indexed and currently sits above $7 million. Confirm the current figure with the Department of Taxation and Finance.
5. Sell real property if needed. EPTL 11-1.1(b)(5) gives an administrator the power to sell real property without a separate court order unless the letters contain a restriction. Title companies will want certified letters, the death certificate and, in cousin cases, the kinship decree.
6. Distribute and account. After the seven-month creditor period, distribute in the exact EPTL 4-1.1 shares. Close the estate either with an informal accounting and signed receipts and releases from every distributee, or with a judicial accounting under SCPA Article 22. See estate accountings in New York.

When the Heirs Are Cousins: Kinship Proceedings

If the decedent left no spouse, issue, parents, siblings or nieces and nephews, the court will not simply take a cousin's word that they are the closest relative. In New York City the usual sequence is that the Public Administrator receives letters, administers the estate, and files an accounting. The alleged cousins then appear in the accounting proceeding and must prove kinship, typically before a court attorney-referee.

A kinship claimant has to prove three things with documents, not family lore:

• The chain of relationship: certified birth, marriage and death records linking the claimant to the decedent through a common grandparent. Foreign records require certified translations and, often, an apostille.
• That the closer classes are closed: affirmative proof that the decedent had no spouse, no children (marital or non-marital), no surviving parent, and no siblings or siblings' issue. This is usually the hardest part and often requires a disinterested witness or a professional genealogist.
• That their own class is complete: every first cousin on both the paternal and maternal sides must be identified, because EPTL 4-1.1(a)(6) splits the estate between the two sides.

Under SCPA 2225, once three years have passed from death and a diligent search has been made, the court may determine that no other distributees exist, which lets the proven cousins take without a reserve being held for unknown relatives. Shares belonging to distributees who are known to exist but cannot be found are deposited with the New York City Commissioner of Finance (or the county treasurer outside the City) under SCPA 2222, where they wait until the person or their estate claims them.

When a Known Distributee Cannot Be Located

A missing heir does not stop an administration. The petitioner describes the search in an affidavit of due diligence (last address, relatives contacted, databases and social media checked, letters returned). The court then permits service of citation by publication under SCPA 307, usually in a newspaper the court designates, and appoints a guardian ad litem under SCPA 403 to protect the absent person's interest. Letters issue, the estate is administered, and the missing distributee's share is set aside or deposited under SCPA 2222 rather than divided among the others. A bond is more likely to be required in these cases because not every distributee can waive it.

Related Situations With Their Own Pages

• The appointed administrator died, resigned or was removed: administrator d.b.n. (de bonis non) in New York.
• There is a will but no executor able to serve: administrator c.t.a. (cum testamento annexo). That is not an intestate estate and this page does not apply.
• The administrator is mishandling the estate: removing an administrator in New York.
• The decedent lived in another state but owned New York real property: ancillary letters in New York.
• One heir is occupying the inherited house: a beneficiary living in an inherited house.
• Stage-by-stage calendar: a sample NYC estate timeline.
• Retaining counsel for the petition itself: attorneys for Letters of Administration.

Frequently Asked Questions

How long does intestate administration take in New York?

Count two clocks. The first runs from filing to the issuance of letters: several weeks to a few months for a complete, uncontested petition, longer if citation must be served, a distributee is missing, or the court requires a bond. The second runs from letters to distribution: at least seven months, because SCPA 1802 gives creditors that long to present claims and an administrator who distributes earlier takes on personal risk. A simple estate therefore closes in roughly nine to fourteen months. Estates with real property to sell, a Medicaid claim, a tax return, or a kinship hearing commonly run eighteen months to several years.

Can an heir who lives out of state serve as administrator?

Yes, if the heir is a United States citizen or a lawful permanent resident domiciled in the United States. SCPA 707 disqualifies only non-domiciliary aliens, and even they may serve alongside a New York resident co-administrator. An out-of-state petitioner must file a Designation of Clerk for Service of Process under SCPA 708, which lets the court treat the clerk as the administrator's agent for service. Courts are more inclined to require a surety bond from a non-resident, so obtaining bond waivers from the other distributees before filing is worth the effort. Day-to-day tasks such as opening the estate account and signing closing documents can be handled remotely or through counsel.

Does a stepchild inherit when there is no will?

No. EPTL 4-1.1 distributes to a spouse and to blood or adoptive relatives. A stepchild who was never legally adopted is not a distributee regardless of how long the stepparent raised them. If the stepparent adopted the child, Domestic Relations Law 117 treats the child as the stepparent's child for all intestacy purposes, and in a stepparent adoption the child also keeps inheritance rights from the biological parent who is married to the adoptive parent. Stepchildren who expected to inherit sometimes raise claims in contract or constructive trust, but those are separate lawsuits and are not part of the administration itself.

What if the only asset is a house?

Title to real property vests in the distributees at the moment of death by operation of EPTL 4-1.1, but no title company will insure a sale, and no lender will refinance, without court papers establishing who those distributees are. Because SCPA 1301 excludes any estate with real property from small-estate treatment, a full administration is required even if there is no cash. The administrator has power to sell under EPTL 11-1.1(b)(5). If the heirs want to keep the house, letters are still needed to record a deed from the estate into their names and to deal with the mortgage servicer. Where heirs cannot agree on keeping or selling, a partition action may follow the administration.

Does the surviving spouse get everything?

Only if the decedent left no children or grandchildren. Where there is issue, the spouse takes $50,000 plus one-half of what remains after the EPTL 5-3.1 exempt property is set aside, and the children divide the rest. This surprises many spouses who assumed that marriage alone carried the whole estate, and it is the most common reason for a dispute between a second spouse and children from a first marriage. Note that jointly held property, retirement accounts and life insurance naming the spouse are not part of this calculation; they pass to the spouse outright and outside the estate.

Can an unmarried partner inherit if there is no will?

No. New York does not recognize common-law marriage entered into within the State, and EPTL 4-1.1 gives nothing to a partner who was not legally married to the decedent. A partner may keep assets that were jointly titled or that named them as beneficiary, and may have claims as a creditor for money actually advanced, but has no distributive share and no standing to petition for letters.

What happens if the heirs disagree about who should serve?

Any distributee with equal or higher priority may file objections after being served with citation. The Surrogate hears the dispute and may appoint the objectant, the petitioner, both as co-administrators, or neither. Where the family cannot agree and the court doubts that any of them will act impartially, it may appoint the Public Administrator under SCPA 1001(8). Objections based on SCPA 707 eligibility (a felony conviction, substance abuse, dishonesty) require proof, not accusation.

Speak With a New York Estate Attorney

An intestate administration turns on getting the distributee list right the first time, choosing the correct county, and presenting a petition the clerk can approve without sending it back. We prepare the petition and supporting affidavits, obtain waivers or serve citations, address bond and Medicaid issues before filing, and guide the administrator through creditor claims, tax filings and the final accounting. We also represent distributees who need to object to a petition, prove kinship, or compel an accounting.

The Law Offices of Albert Goodwin can help. We have offices in Manhattan, Brooklyn and Queens and appear in Surrogate's Courts throughout the metropolitan area. Call 212-233-1233 or email [email protected].

About the author: Albert Goodwin, Esq. is admitted to practice law in the State of New York and concentrates his practice in estate administration, probate and Surrogate's Court litigation. This page was last reviewed on [month year]. It is general information about New York law and is not legal advice. Statutory dollar thresholds, filing fees and tax exclusion amounts change; confirm current figures with the Surrogate's Court or an attorney before relying on them.