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What is the Order of Inheritance Without a Will in New York City
When a person dies without a will, the order in which relatives inherit is fixed by the intestacy law of the state where the decedent was domiciled at death. For a New York domiciliary, that law is EPTL § 4-1.1, and it leaves no room for discretion: the statute says who takes and in what shares, and the Surrogate’s Court applies it as written.
Determining the Residence of the Decedent
The governing intestacy law is that of the state where the decedent last resided. In New York, the petition for administration is filed in the county where the decedent lived and considered his primary home before he died. If the decedent owned several residences, the domicile is the place he intended to return to. If the decedent died in a nursing home, his domicile is the place he lived before entering the nursing home, even if he no longer owned or rented that home.
Order of Inheritance in New York Without a Will
Under EPTL § 4-1.1, the estate is distributed in the following order, depending on who survived the decedent. The first row that fits the family takes everything; the rows below it get nothing.
| Decedent survived by | Who inherits |
|---|---|
| A spouse and issue | Fifty thousand dollars and one-half of the residue to the spouse, and the balance to the issue by representation. |
| A spouse and no issue | The whole to the spouse. |
| Issue and no spouse | The whole to the issue, by representation. |
| One or both parents, and no spouse and no issue | The whole to the surviving parent or parents. |
| Issue of parents, and no spouse, issue or parent | The whole to the issue of the parents (the decedent’s siblings, nieces and nephews), by representation. |
| One or more grandparents or the issue of grandparents, and no spouse, issue, parent or issue of parents | One-half to the surviving paternal grandparent or grandparents, or if neither survives, to their issue by representation; and the other one-half to the surviving maternal grandparent or grandparents, or if neither survives, to their issue by representation. If the decedent was not survived by a grandparent or the issue of a grandparent on one side, the whole goes to the surviving grandparent or grandparents on the other side, or if neither survives, to their issue by representation, in the same manner as the one-half. For this purpose, issue of grandparents does not include issue more remote than grandchildren of such grandparents. |
| Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents | One-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita. If the decedent was not survived by great-grandchildren of grandparents on one side, the whole goes to the great-grandchildren of grandparents on the other side, in the same manner as the one-half. |
To see the statute applied to a particular family and estate, use our New York intestacy calculator. For the statutory text and its finer points, see our guide to EPTL 4-1.1.
Relatives, Issue and Representation
Three terms in EPTL § 4-1.1 decide most questions about who inherits: who counts as a relative, who counts as issue, and what it means to take by representation.
Who Is a Relative of the Decedent
A relative of the decedent, a sibling for example, includes relatives of the half blood as well as the whole blood. A half-sibling shares only one parent with the decedent, while a whole sibling shares both. Under EPTL § 4-1.1 there is no distinction between the two: a half-sibling is treated as a whole sibling, and both inherit from the decedent without discrimination.
Who Is Issue of the Decedent
Issue means descendants of the decedent: the decedent’s children, grandchildren, great-grandchildren and so on down the line.
What the Right of Representation Means
The statute repeatedly directs that a class takes “by representation.” EPTL § 4-1.1(a)(1), for instance, provides that where a decedent is survived by a spouse and issue, the spouse takes $50,000 and one-half, and the balance goes to the issue by representation. Representation is the right of a descendant to stand in the place of a predeceased ascendant in the decedent’s estate.
Suppose the decedent had two children, A and B. B died before the decedent but left two children, C and D, who survived. When the decedent dies without a will, C and D are the decedent’s issue, and they inherit by representation, standing in for their parent B. C and D together receive what B would have received had B survived. That is the right of representation: descendants take from the decedent what their ascendant would have taken.
Working out who the intestate distributees are can be complicated when there are many descendants, children from different parents, or competing claims to serve as administrator. If you are dealing with a New York estate where there is no will, we can help you determine your rights and what to do next. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience 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].
