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  • Nicole J. Zuvich

Probate administration and intestate succession

Updated: Sep 27

Perhaps the best way to show why it’s a good idea to have a will is to explain what happens without one.

Under New York law, when a person dies without leaving a valid will, they are said to die intestate. Since there is no will to dictate how their property should be distributed, the estate goes through probate administration, in which the probate court determines how to distribute the estate. This process isn’t always terrible, but in many cases it can be quite complicated and can take many months of the court’s time. The cost of all this court time generally comes out of the estate itself, leaving less for for the eventual heirs. In many cases it can lead to results that the deceased person would never have wanted.

The law of intestate succession

When a person dies without a will, the court distributes their estate  to according to the law of intestate succession. This law essentially maps out the deceased’s family tree, and distributes the estate to the closest living relatives.

First in line is the deceased’s spouse. If the person has a living spouse and no children, the spouse inherits everything. Next in line are the children. If the deceased leaves behind a living spouse and children, the spouse and children split the inheritance 50-50. If the deceased leaves behind children but no living spouse, the estate goes to the deceased’s children. Adopted children are treated just the same as biological children. If a deceased man leaves behind a child born outside of marriage, that child can also inherit, so long as paternity has been legally established.

If the deceased leaves behind neither spouse nor children, but their parents survive them, the parents inherit the estate. If they leave behind siblings, but no spouse, no children and no parents, the siblings inherit the estate.

All this may seem straightforward enough, but it can get complicated quickly when applied to real life. And the complications can lead to nasty fights between family members.

The best way to avoid this scenario is through a well-drafted estate plan. Failing that, it’s important for survivors to seek out help from a lawyer with experience in probate administration.

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