What Happens to Your Property if You Die Without a Will
What happens to my property if I die without a will in New York?
When you die without a will in New York, your property passes according to a state formula, not your wishes. If you leave a surviving spouse and children, your spouse gets the first $50,000 plus half of what remains, and your children split the rest equally. If you leave a spouse but no children, your spouse receives everything. Without a spouse, your children inherit equally. This process, called intestacy, typically goes through Surrogate's Court in your county and is slower and costlier than following a will. Property in your name alone passes through probate, but some assets bypass this entirely—joint property, retirement accounts, life insurance, and accounts with named beneficiaries go directly to designated recipients. The only way to control how your property passes is to make a plan while alive.
New York's Intestacy Rules
Under New York law (EPTL 4-1.1), when someone dies without a will, their property passes in a fixed order. The law prioritizes spouses, then children, then more distant relatives. This order is rigid—you cannot change it by dying without a will.
Who Inherits and in What Order
A surviving spouse and children means the spouse receives the first $50,000 plus one-half of the remaining estate, while children split what's left equally. Spouse alone receives everything. Children alone inherit equally. Parents inherit only if there's no spouse or children. Siblings and more distant relatives inherit last.
Why Dying Without a Will Costs More
Intestacy requires Surrogate's Court involvement and a formal administration process. Court fees, legal costs, and administrative expenses are often higher than they would be with a will in place. The process takes longer, and heirs must wait for court approval before receiving anything.
Assets That Pass Outside Probate Anyway
Some property bypasses probate regardless of whether you have a will: joint property with right of survivorship, life insurance with a named beneficiary, retirement accounts (401k, IRA), and Totten trusts (payable-on-death bank accounts). These assets go directly to designated recipients.
What to Do Next
Write a will naming an executor and stating who gets your property. If you have minor children, name guardians. If you own significant assets or property in multiple states, consider a revocable trust. Review beneficiary designations on life insurance and retirement accounts to make sure they match your wishes.
When it is worth a call
- You have no current will
- Your family structure is complex (multiple marriages, estranged relatives)
- You own property in more than one state
Common questions
- Can my property go to someone I didn't want to inherit?
- No. New York's intestacy law is fixed and automatic. A spouse always inherits before more distant relatives. Children inherit before parents. If the law's order doesn't match your wishes, you need a will.
- Can a surviving spouse inherit everything?
- Yes, but only if there are no children. If you have children, your spouse gets $50,000 plus one-half of the estate while children split the rest. You cannot disinherit a spouse through a will, as they have a legal right to claim a share (spousal right of election under EPTL 5-1.1-A).
- Is the probate process the same for everyone?
- No. Smaller estates may qualify for a faster process called small-estate administration under Article 13 of the Surrogate's Court Procedure Act. The specific procedure depends on your county's Surrogate's Court and your estate's complexity. Check current thresholds, as they change periodically.
- Who pays the costs if I die without a will?
- Your estate pays court fees, legal costs, and administrative expenses. These are often higher when there's no will because the process is more complex and the court must oversee administration more closely.
Talk it through with Mitch
Bring the situation, not a diagnosis. A short conversation usually makes the next step obvious.