What is the Order of Inheritance Without a Will in New York City

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.

Determining the Residence of the Decedent

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.

Order of Inheritance in New York Without a Will

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:

• A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof 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, by representation.
• One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall 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; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.

Definitions of Relative, Issue, and Representation

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.

Who is a Relative of the Decedent

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.

Who is Issue of the Decedent

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.

What is the Right of Representation in Decedent’s Estate

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].