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Probate

If your loved one died without a will in New York

Dying without a will in New York state


  • “Intestate” is the legal term for when someone dies without leaving a will.

  • In New York, a judge in Surrogate’s Court will appoint an administrator to lead intestate estates through probate.

  • Administrators, like executors, are empowered legally and financially to act on behalf of the estate.

  • Without instructions in a will about how to distribute assets, the courts step in and name beneficiaries based on intestate law.

  • Intestate law specifies how much each heir receives, based on their relationship with the person who died.


When a loved one dies “intestate”—that is to say, with an incomplete, missing, or invalid will—it can feel particularly scary and confusing. Losing a loved one is difficult enough, and when you hear that there is no valid will, the sense of uncertainty about what happens next can be incredibly stressful. However, you may be comforted to hear that in New York, the protocol for this scenario is fairly straightforward. 

Without a will, New York intestate laws dictate how assets will be distributed to the heirs. The general rule of this framework is that assets are distributed to relatives according to their relationship to the person who died. 

Keep in mind that not all of your loved one’s assets are subject to intestate succession laws––only those which would normally pass through probate, were there a valid will. Many valuable assets don’t go through probate, and instead pass directly to their designated beneficiary or co-owner, such as: property in a living trust or jointly-owned property, a life insurance policy, and funds in an IRA or 401(k) retirement account. 

Who becomes the administrator?

When there is no will, it may be unclear who will be in charge of the estate. With a valid will, an executor is designated to handle the probate process, but without a will, instead of an executor, an administrator gets appointed.

In New York, the closest living relative of your loved one will have to file for estate administration. This usually falls to the spouse or an adult child.

According to New York state law, the order of priority for the administrator is: 

  • Spouse 

  • Children

  • Grandchildren

  • Parents

  • Siblings

Generally, the spouse has priority over the children, but if there is no living spouse, then the children have equal rights to serve as administrator. You will need to make a decision as a family about who will fill thise role, since it is a very important job.

Another thing to remember is that a relative with higher priority can sign a renunciation and waiver if they do not want to serve as administrator. In this case, the next-highest priority relative can take on the job.

This does not mean that their share of inheritance will be affected in any way, only that they give up their right to administer the estate.

If there are no survivors in these categories, more distant relatives may be considered. Be prepared to show proof of kinship to the court when filing for administration.

For someone who has no experience in administering an estate, the task can feel totally overwhelming. It can also be difficult to decide as a family who will take on this role. If you’re in doubt, seek the guidance of a probate lawyer. 

Filing for administration 

Once you are clear about who is going to be the administrator, that person needs to file for administration at the Surrogate’s Court in the county where your loved one had their primary residence.

Each court generally requires the same documents for this process, but some might have slightly different requirements. An experienced probate lawyer will know the specifics of the Surrogate’s Court at which you must file. You can look up the information for the Surrogate’s Court in your county here

When you have your appointment at the court, you will need to bring the appropriate documentation with you. You’ll need to file: a certified death certificate, a copy of the paid funeral bill, the Petition for Letters of Administration, and other supporting documents which can be downloaded here.

You should also make a list of the decedent’s debts—hospital bills, credit card debts, etc.—as well as a list of property they owned, and a list of all the beneficiaries or “distributees.” You may be able to file electronically using the New York State Courts Electronic Filing System (NYSCEF).

Keep in mind that there is a filing fee in New York state. The fee for a petition for administration is based on the value of the estate. The fee can range from $45 for an estate worth $10,000 or less to $1,250 for an estate worth $500,000 or more.  

If the value of your loved one’s personal property is less than $50,000, then it’s considered a “small estate” and may not need to be distributed by an administrator. In this case, instead of filing your letters of administration, you would file what’s called a Small Estate Affidavit. Your probate lawyer will be able to assess whether or not your loved one’s estate can be considered “small” and therefore bypass administration. 

Who gets what in New York?

As mentioned previously, an estate’s assets get distributed according to New York state’s intestate laws, which dictate inheritances based on the heirs’ relationship with your loved one. The full breakdown is articulated here in Section 4-1.1 of NYS Law.

In simple terms, if there is a surviving spouse and no children, the spouse inherits everything. And the reverse is true: If there are surviving children and no surviving spouse, the children inherit everything.

If there is a spouse and surviving children, the spouse gets the first $50,000 of assets plus half of the remaining balance, and the children get the rest.

If your loved one had grandchildren, they would only inherit in their parent’s place if their parent is no longer alive. A simplified breakdown of intestate laws can be found on this New York state goverment site

While it certainly is more complicated to settle an estate without a will, it’s not the end of the world. In fact, it’s more common than you might think to have a missing will, and New York has a fairly straightforward process. If you are in charge of administration, take some time to explain the intestate laws to your family and reassure them that the courts are used to such cases ●

Probate

Probate

Probate is often a long and complex process, but it is also completely manageable if you stay organized and follow the instructions of the court. It’s definitely still a good idea to avoid the full probate process, if you can. We’ll walk you through whichever scenario applies to your loved one’s estate.