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

When you find a close relative to die without a will, the loss can be challenging and emotional. When that relative who dies without a will has property that needs to be distributed to the heirs, observing the proper procedure is important in order to save time and resources so distribution may be made as immediately as possible.

Types of Estate Proceedings

In New York, here are two types of estate proceedings for a person who dies without a will:

1. Administration
2. Voluntary Administration

When your relative dies without a will, you file a petition for administration. If your relative did not own any real estate and the value of their personal property is less than $50,000, then the estate may be processed under voluntary administration, which is a simplified process.

For this reason, when your relative dies without a will, the remaining relatives need to determine the proper procedure to be observed by asking is the estate below $50,000.

In determining what procedure will be observed, the value of the probate estate is considered, excluding the non-probate assets. So for example, if your relative died with his house owned by a trust, $200,000 in his retirement account with the spouse as his beneficiary, and only $10,000 in his bank account, your deceased relative’s estate will be administered under voluntary administration because he died with no real property and a probate estate of less than $50,000.

Voluntary Administration

When a person dies with an estate below $50,000, the probate estate is administered under voluntary administration. To qualify under voluntary administration, the following conditions must concur:

• Your relative died without owning real property in his sole name;
• Your relative owned personal property of less than $50,000;
• There is no wrongful death or other lawsuit to be filed against a third party.

When all of the above conditions concur, the estate is a small estate and thus administered under quicker process called voluntary administration.

Petition for Administration

When the estate is not a small estate and the person dies without a will, a petition for administration is filed. In New York, the closest living relative, usually the spouse, files the petition for administration.

Sometimes, and more especially in cases of blended families where there is a second spouse but the children are from the former spouse, there will almost always be competing claims for administration. When this happens, parties undergo settlement on how property will be distributed in case they agree to the other party being appointed as administrator.

Procedure for Administration

An administrator must follow the procedure provided by state law in administering an estate. Before distribution can be made, estate debts and expenses must be first be paid.

In New York, there is a hierarchy of payment for debts and expenses under SCPA § 1811. When the administrator fails to observe this order and the estate is found to be insufficient to pay the debts, the administrator may be held liable.

There is a seven-month period from the time the administrator is appointed for creditors to file their claims. After this period, the administrator may distribute the remaining proceeds to the heirs in good faith.

Administering an estate when a person dies without a will can be a complex matter. There may be also doubts as to the value of the probate estate for purposes of determining whether the estate is a small estate. An experienced probate attorney can assist you, in case one of your close relatives has died without a will.

Should you need assistance, 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].

New York's Intestacy Rules in Detail

When a person dies without a will in New York, the estate passes by intestacy under EPTL § 4-1.1. The intestacy rules establish a fixed order of priority:

• Spouse and children. The spouse receives the first $50,000 plus half of the residue; the children share the remaining half equally.
• Spouse only (no children). The spouse receives the entire estate.
• Children only (no spouse). The children share the estate equally, with deceased children's shares passing to their issue per stirpes.
• Parents only. If no spouse or descendants, the parents share equally.
• Siblings. If no spouse, descendants, or parents, the siblings (or their issue) share equally.
• Grandparents and their descendants. Following a specific scheme for more distant relatives.
• State. If no relatives can be identified, the estate escheats to the State of New York.

The rules apply automatically. Family expectations about what "should" happen often conflict with what actually happens under intestacy.

The Surviving Spouse's Share

The surviving spouse's intestate share depends on whether there are children:

If the deceased had children with the surviving spouse only: The spouse receives $50,000 plus half the residue. The children of the marriage share the other half.

If the deceased had children from prior relationships: The same formula applies, but the children include all biological and adopted children, not just children with the surviving spouse.

If the deceased had no children: The surviving spouse receives the entire estate.

The spouse's share by intestacy is often less than what a spouse would receive under a typical will. This is one of many reasons why dying without a will frequently produces results the deceased would not have wanted.

Children's Shares and Per Stirpes Distribution

Children share equally under intestacy. When a child has predeceased the parent, the child's share passes to the child's issue per stirpes:

• Each branch of the family tree receives an equal share.
• Within a branch, the issue divide their ancestor's share equally.
• If a great-grandchild exists, their share comes through their parent's share through their grandparent's share.

This system can produce unequal distributions among individuals. A family with one surviving child and four grandchildren from a deceased child will see the surviving child take half the estate while the grandchildren collectively share the other half.

The Definition of "Children" Under Intestacy

Several categories of children inherit under intestacy:

• Biological children. Including children born out of wedlock if paternity is established under specific statutory rules.
• Adopted children. Treated as biological children of the adoptive parents and generally not as children of the biological parents.
• Children born after the deceased's death. Posthumous children inherit if born within the gestational period.
• Children conceived through reproductive technology. Specific rules address these situations.

Step-children do not inherit by intestacy. A step-parent has no obligation to provide for step-children unless they have been formally adopted.

Establishing Paternity After Death

For non-marital children to inherit from a father who dies intestate, paternity must be established by clear and convincing evidence. Common evidence includes:

• Genetic testing showing biological connection.
• Acknowledgment of paternity during the father's lifetime.
• A court order establishing paternity.
• Documents indicating paternity (Social Security applications, school records, etc.).
• Open and notorious acknowledgment of paternity by the father during his lifetime.

Establishing paternity after death can be complex and expensive. The proceedings may require kinship hearings in Surrogate's Court.

Who Can Serve as Administrator

SCPA § 1001 sets the priority for appointment as administrator:

1. The surviving spouse.
2. The children.
3. The grandchildren.
4. The parents.
5. The siblings.
6. More distant relatives in order of relationship.
7. The public administrator, if no relatives are available.

If multiple people in the same priority class want to serve, the court can appoint one, more than one (co-administrators), or refer to a neutral fiduciary. Disputes about appointment typically delay the administration substantially.

The Limited Letters Issue

Sometimes the court issues "limited letters" rather than full letters of administration. Limited letters restrict the administrator's authority to specific actions. Common limitations include:

• Authority to investigate assets but not to sell or distribute them.
• Authority to pursue specific litigation without other administration powers.
• Authority limited to specific assets pending resolution of other disputes.
• Authority subject to bonding requirements.

Limited letters can be issued when there are open questions that need to be resolved before full administration can proceed. Full letters typically follow once the limitations are addressed.

The Bond Requirement

Administrators are generally required to post a bond to protect the estate against mismanagement. The bond requirement can be waived if:

• All distributees agree to waive bonding.
• The will (if any) waives bonding (not applicable in pure intestacy cases).
• The estate is small enough that bonding is not cost-effective.

The bond is typically twice the value of the personal property of the estate. Bond premiums (typically 0.5-1% of the bond amount annually) are paid from the estate or by the administrator personally.

Common Problems in Intestate Administration

Intestate administration tends to involve specific recurring problems:

• Family disputes about administration. Multiple family members want to serve or object to who is serving.
• Missing or estranged distributees. Family members who must be located and noticed even if they have not had contact for years.
• Disputed paternity. Claims of non-marital children that must be investigated and resolved.
• Disputed marriage. Questions about whether the deceased was actually married, divorced, or never married.
• Out-of-state heirs. Distributees living elsewhere who must be served and possibly engaged in the proceedings.
• Disputes about valuation. Without will guidance, family members may fight about how to value and divide specific assets.
• Real estate complications. Multiple heirs becoming co-owners of property they cannot agree how to handle.