NY Executor Guide
New York Intestacy: Who Inherits When There’s No Will
“The spouse gets everything” is the most common belief about dying without a will in New York — and it is wrong whenever there are children.
New York intestate share calculator
Estimate only, applying EPTL 4-1.1 to figures you supply, after debts, administration and funeral expenses. It assumes each child survived; where a child died first leaving children of their own, that branch shares “by representation” and the split changes. Accounts with a surviving joint owner or a named beneficiary generally pass outside the estate.
Who inherits under New York intestacy law?
| The decedent is survived by | Who inherits (EPTL 4-1.1) |
|---|---|
| Spouse and children (or other issue) | Spouse: $50,000 plus one-half of the residue; issue: the balance, by representation |
| Spouse, no issue | The spouse takes the whole estate |
| Issue, no spouse | The issue take the whole estate, by representation |
| One or both parents, no spouse or issue | The surviving parent or parents take the whole estate |
| Brothers and sisters or their issue, no spouse, issue or parent | The issue of the parents take the whole estate, by representation |
| Grandparents or their issue | One-half to each parental side (issue no more remote than grandchildren of the grandparents) |
A worked example: spouse and two children
Take a net estate of $400,000 passing without a will, with a surviving spouse and two children (our arithmetic):
- Spouse: $50,000, plus one-half of the remaining $350,000 ($175,000) = $225,000
- Children: the other $175,000, shared equally = $87,500 each
So on a $400,000 estate the spouse receives a little over half, not all of it. The larger the estate, the closer the spouse’s share gets to one-half.
What comes off before the shares are figured?
EPTL 4-1.1 computes the shares after debts, administration expenses and reasonable funeral expenses are deducted; estate taxes are disregarded. Two other things sit outside the calculation entirely:
- The family exemption (EPTL 5-3.1). Household items up to $20,000, one vehicle up to $25,000, up to $25,000 of money and a few other items pass to a surviving spouse (or children under 21) and “are not assets of the estate.”
- Property that passes by title or beneficiary designation — for example an account with a surviving joint owner — generally goes to that person rather than through the estate.
Relatives of the half blood are treated as relatives of the whole blood, so half-siblings share equally with full siblings.
Who administers the estate?
Without a will the Surrogate’s Court issues letters of administration. Priority under SCPA § 1001 is: the surviving spouse, the children, the grandchildren, either parent, the brothers or sisters, then other distributees. Where several people are equally entitled, the court may appoint one or more of them, and a non-priority person can be appointed on the acknowledged consents of all eligible distributees.
If there is a will, intestacy shares do not apply — but a surviving spouse has a separate right of election to the greater of $50,000 or one-third of the net estate (EPTL 5-1.1-A), exercised within 6 months of letters.
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Frequently asked questions
Does the spouse inherit everything in New York if there is no will?
Only if there are no children or other descendants. With a spouse and children, EPTL 4-1.1 gives the spouse $50,000 plus one-half of the rest, and the children share the balance by representation.
What do children inherit without a will in New York?
With a surviving spouse, the children share whatever remains after the spouse’s $50,000 and one-half of the residue. With no spouse, the children (and the descendants of any child who died before) take the whole estate by representation.
Who inherits if there is no spouse and no children?
The parents, or the surviving parent. If there are no parents either, the estate goes to the issue of the parents — brothers and sisters, and the children of any who died before — by representation. After that it goes to grandparents or their descendants, split by parental side.
Do half-siblings inherit in New York?
Yes. EPTL 4-1.1 treats relatives of the half blood as if they were relatives of the whole blood.
Is the intestate share calculated before or after debts?
After. Debts, administration expenses and reasonable funeral expenses are deducted first; estate taxes are disregarded when computing the shares.
Who becomes the administrator of an estate without a will?
Priority under SCPA 1001 runs: the surviving spouse, the children, the grandchildren, either parent, the brothers or sisters, then other distributees. The court can appoint one or more equally entitled people, or someone else on the consent of all eligible distributees.