The order of inheritance of the relatives when a person dies without a will is subject to the state’s laws on intestacy. The state law that governs is the state where the decedent was domiciled upon death.
The state intestacy law that governs the order of inheritance of a decedent who dies without a will is the state where the decedent last resided. In New York, the county where you file the petition for administration is the county where the decedent lived and considered his primary home address before he died. If decedent owns several residences, the domicile is the place where decedent intended to return. If the decedent died in a nursing home, the decedent’s domicile is the place where he lived before entering the nursing home, even if he no longer owns or rents the home.
The order of inheritance in New York when a decedent dies without a will is governed by EPTL § 4-1.1. Under this provision, the distribution shall be in the following order, depending on who the decedent is survived by:
To understand better the descent and distribution provision for New York intestacy under EPTL § 4-1.1, there is a need to define who is a relative, who are the issue of decedent, and when representation occurs.
A decedent’s relative (i.e., sibling) includes both the half blood and the whole blood. There is no distinction between the two. A half-sibling is considered a whole-sibling. For example, a half-sibling is a sibling where the decedent only shares one parent with such sibling, as opposed to a whole sibling where the decedent shares the same set of parents. Under EPTL § 4-1.1, there is no distinction between relatives of the half and whole-blood. Both inherit from the decedent without discrimination.
EPTL § 4-1.1 also discusses the issue of the decedent. Simply speaking, an issue of a decedent is a descendant of the decedent. A descendant of the decedent includes the decedent’s children, grandchildren, great-grandchildren and so-forth.
That same provision also discusses inheriting by representation. For example, you find the word “representation” in EPTL § 4-1.1(a)(1), which states that if a decedent is survived by a spouse and issue, $50,000 and ½ to the spouse, and the balance to the issue by representation. Representation means the right of a descendant of the decedent to represent his predeceased ascendant in the estate of the decedent.
For example, the decedent has two children, A and B. B died before the decedent, but B had two children, C and D, who survived the decedent. When decedent dies without a will, B’s children are considered the decedent’s issue. C and D, B’s children, have the right to inherit from the decedent by representation, representing their parent B in decedent’s estate. Thus, C and D will get what B should have gotten if B survived decedent. This is the right of representation. The descendants can inherit from decedent what their ascendant would have gotten if their ascendant survived the decedent.
Determining who are the intestate distributees of the decedent can be a complex matter especially when there are a lot of descendants involved, there are several children from different parents, and there are competing claims on who will be the administrator. The advice of an experienced probate attorney can help you determine your rights and remedies. 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].