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Laws of Intestacy in New York

When someone dies without a will, their property is distributed according to the New York Estates, Powers and Trusts Law (EPTL). The intestacy law found in the EPTL provides rules of distribution when there is no will. Contact a New York wills lawyer to learn about creating a will.

This process begins by determining who is in the family. If there is a spouse and no children, the spouse receives 100 percent of the estate. If there is a spouse and children, the spouse receives $50,000 plus half of the balance of the estate. The children inherit everything else. If one of the children is deceased and they had children, those children take their deceased parent’s share. When there are just children and no spouse, the children share the estate equally.

Children of the Deceased

If however, if the deceased had married a person with a child of their own, the descendant would be a stepchild and would receive nothing from the estate.

Regardless of whether the surviving spouse is the parent of the deceased’s children is irrelevant. The stepchildren do not inherit, but biological and adoptive children do. If they are the descendants of the surviving spouse but not of the deceased they do not get anything.

In the event that the last parent dies and there is intestacy, the children share equally. If a child dies before the parent, then that child’s children receive the deceased child’s share.

Other Factors to Consider

People should understand that they do not want their assets to go by what the State determines is appropriate. They should make a will so they do not have intestacy.

The estate goes to the State in the event that there is no one closer than a first cousin. If  there are no first cousins and no descendants of pre-deceased first cousins, then the State takes the money.

There may be an elderly parent getting support from a child that dies. Under the laws of intestacy, the entire estate goes to the surviving spouse and the deceased’s descendants. The parent was depending upon their child to keep supporting them because it is assumed that parents will survive their children, however, after their death the parent receives nothing. One way to overcome that is the deceased could have made a will and provided for his or her parents, in addition to his or her spouse.

On the other hand, if a man does not want to leave his entire estate to his wife. He wants to leave a portion of his estate to his children. If he writes a will leaving a portion of his estate to his children, his wife may be very angry and disappointed, so he does not make a will. The law says that the wife gets the first $50,000 plus 50 percent of the estate, and each of his two children will get 25% each of the balance. The man used the laws of intestacy to accomplish what he wanted without making an affirmative step that would antagonize his wife.

Hiring an Attorney

There is no such thing as an intestacy lawyer. A person would hire an estate lawyer to deal with the matter whether it is intestacy or probate. If the person had assets, there are two choices, probate or administration.

The administration proceeding takes place when a person dies without a will and someone must be appointed to manage their affairs. Usually, a relative is appointed depending upon which relatives are around. One of them steps up and takes the role of a personal representative or an executor, but they are an administrator when there is no will as opposed to an executor when there is a will.

Nuances of Children’s Status

If the child was adopted by other parents with the consent of the natural parents, they may be foreclosed from inheriting from their natural parents. There are situations where that happens. For example, when a couple divorces and the mother stays with the child, remarries, and the stepfather adopts the child with the consent of the natural parent, it is possible that the child will not inherit in the absence of a will from their natural parent. However, if a child was adopted by the person who died, they are treated the same as natural children.

An illegitimate child inherits from both natural parents the same as a legitimate child. A person is deemed to be illegitimate if both parents were not married while he/she was born.

A stepchild will probably not inherit from the stepparent but will always inherit from the natural parents, unless adopted by the stepparent.

Benefits of a Lawyer With Children Involved

When there are minor children under the age of 18 in New York, very often the court appoints somebody to represent them. Their situation can be different and they should have independent representation because they may be entitled to money which otherwise would not go to them and instead go to their parent. The court views children as separate entities for the purposes of a probate proceeding. The court will very often appoint an attorney for the child, known as a guardian ad litem.