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In New York, the transfer of property after death without a will is governed by the laws of intestacy. This means that the deceased person’s assets will be distributed using state laws, in accordance with a predetermined order of priority. Before the estate is distributed, however, the courts needs to appoint an administrator, who is tasked with the duty and responsibility of paying the deceased person’s debts and taxes before distributing the remaining property to the heirs.
Appointing an Administrator
In New York, SCPA § 1001 provides for the order of priority on who can be appointed as administrators. Generally they are the following, in that particular order:
- the surviving spouse,
- the children,
- the grandchildren,
- the father or mother,
- the brothers or sisters,
- any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the largest share in the estate, save for exceptions.
Although there is an order, disputes may arise on who is entitled to be appointed as administrator. Sometimes, children fight amongst themselves on who should be appointed. Sometimes, even if the spouse has priority, children may fight to claim that the spouse is ineligible and fails to qualify. If you have issues regarding the appointment of administrator, consult with a New York lawyer immediately to know your options. You can call us at 212-233-1233 or send us an email at [email protected].
Small Estates
If the estate is below $50,000 and does not have any real property, there is no need to appoint an administrator to administer the estate and distribute the property to the heirs. The process is administered as a small estate under voluntary administration, regardless of whether the deceased person died with or without a will.
Order of Priority in Transfer of Property
The predetermined order of priority in transferring property after death without a will New York is provided under Estates, Powers, and Trusts Law (EPTL) § 4-1.1. This provision states the descent and distribution of an intestate estate.
Below is a table of who receives the estate of the deceased person. The provision talks of issue. Issue just means the descendants of a person.
| Survivor | Share |
|---|---|
| Spouse and issue | Spouse gets $50,000 plus ½ of the estate, remaining balance goes to issue |
| Spouse with no issue | Spouse gets everything |
| No spouse, no issue | Parents get everything |
| No spouse, no issue, no parents | Parents’ issue by representation |
| No spouse, no issue, no parents, no parents’ issue | Grandparents or their issue, ½ to the maternal and ½ to the paternal side, by representation |
| No spouse, no issue, no parents, no parents’ issue, no grandparents’ issue | Great grandchildren of grandparents, ½ to the maternal and ½ to the paternal side, per capita |
| No spouse, no issue, no parents, no parents’ issue, no grandparents’ issue, no great grandchildren of grandparents | State |
Relatives of the half-blood are treated the same as relatives of the whole blood.
Representation vs. Capita
In this provision, you will see the words representation and capita to define how property is distributed.
For example, when there is no spouse, no issue, or no parents, the parents’ issue inherit the estate by representation.
Inheriting an estate by representation means that the closest issue will receive the estate, and if there is a deceased person among that same degree of relation, the deceased person’s issue shall shall represent the deceased person in inheriting the deceased person’s share.
Suppose that you die without a spouse, children, or parents, but leave only your siblings. You have three siblings (A, B, and C), but one of your siblings (A) already predeceased but left two surviving children (D and E). If your estate was $150,000, your estate would be distributed in this way:
| If in accordance with the right of representation: | If distributed per capita: |
|---|---|
| Since you have three siblings, each sibling would get $50,000. Since A died, A’s share of $50,000 would go to his two children, D and E. D and E would represent A in your estate and would receive $25,000 each, for a total of $50,000, A’s share. | The survivors, B, C, D, and E would each get equal shares, so the $150,000 would be divided into 4 shares, each getting $37,500. |
In EPTL § 4-1.1, however, per capita is used only when there is no spouse, no issue, no parents, no parents’ issue, and no grandparents’ issue. In this case, the great grandchildren of grandparents receive the estate per capita, ½ to the maternal and ½ to the paternal side.
Suppose in the same example that you died, leaving $150,000 and your closest kin was the great grandchildren of your grandparents. In this case, if there are 5 great grandchildren on your paternal side and 5 great grandchildren on your maternal side, each would inherit per capita, irrespective of who their parent was. In that case, each great grandchild would get $15,000.
Should you have questions regarding transferring property after death without a will, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise 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].
