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Transfer of Property After Death Without A Will

In New York, the transfer of property after death without a will is governed by the laws of intestacy. This means that the deceased personā€™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 personā€™s debts and taxes before distributing the remaining property to the heirs.

Appointing an Administrator

In New York, SCPA Ā§ 1001 provides for the order of priority on who can be appointed as administrators. Generally they are the following, in that particular order:

  1. the surviving spouse,
  2. the children,
  3. the grandchildren,
  4. the father or mother,
  5. the brothers or sisters,
  6. 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 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

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) Ā§ 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 Ā½ 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 Parentsā€™ issue by representation
No spouse, no issue, no parents, no parentsā€™ issue Grandparents or their issue, Ā½ to the maternal and Ā½ to the paternal side, by representation
No spouse, no issue, no parents, no parentsā€™ issue, no grandparentsā€™ issue Great grandchildren of grandparents, Ā½ to the maternal and Ā½ to the paternal side, per capita
No spouse, no issue, no parents, no parentsā€™ issue, no grandparentsā€™ 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 parentsā€™ 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 personā€™s issue shall shall represent the deceased person in inheriting the deceased personā€™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, Aā€™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, Aā€™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 Ā§ 4-1.1, however, per capita is used only when there is no spouse, no issue, no parents, no parentsā€™ issue, and no grandparentsā€™ issue. In this case, the great grandchildren of grandparents receive the estate per capita, Ā½ to the maternal and Ā½ 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, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.