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New York Law Governing Wills and Estates

Estates Powers and Trusts Law (EPTL); Surrogate Court Procedure Act (SCPA)



When a person dies without a will



A person who dies without a will



AKA heir, next of kin: a person who inherits property under intestate successin



AKA descendant: all persons who have descended from a common ancestor, including those in direct line of inheritance with the decedent (children, grandchildren, etc.)



A person (usually a distributee) appointed as a personal representative to administer the estate of the decedent


Administration proceeding

A proceeding initiated by distributee to appoint an administrator and administer property of the decedent.


Intestate Property

Assets held in the decedent's name alone, that do not pass by operation of law or by Will and which the administrator administers in accordance with the EPTL


Operation of Law

Property that passes automatically because of the way the property's title is held, regardless of the existence of a Will or intestacy.



The balance of the decedent's/testator's estate after all claims, taxes, and particular bequests have been distributed (the "rest" of the estate).



When a person dies with a will



A person who dies with a will



A person who receives a bequest (sometimes called a legacy or devise, for those who inherit real property) under a will



A personal representative named in the Will to administer the estate of a testator


Probate proceeding

A Surrogate's Court proceeding to judicially determine validity of will and intestate distributees, and appoint executor to administer the testator's estate.


Probate estate

Assets held in the testator's name alone that do not pass by operation of law and which the executor administers in accordance with the testator's will.


Satisfaction of Legacy

A lifetime gift to a Will beneficiary


Application of intestacy rules

The EPTL's rules about descent and distribution of property (both real and personal) in intestacy apply when (1) the decedent left no will, or did not properly execute it; or (2) the Will does not make a complete distribution of the estate, typically b/c of poor drafting by attorney, resulting in partial intestacy; or (3) A distributee successfully challenges the Will and the Will is denied probate.


Order of Priority for Appointment as Administrator

1. Surviving spouse; 2. Children; 3. Grandchildren; 4. Parent; 5. Siblings; 6. Any other distributee.


Distribution: Decedent Survived by Spouse and No Children/Issue of Children

Rule: Surviving spouse takes the whole estate.


Distribution: Decedent Survived by Spouse and Children

Rule: Whether the surviving children/issue are of current marriage or earlier marriage, the surviving spouse takes $50,000 plus 1/2 of the residuary. The issue share in the leftover residuary, unless the estate is less than $50,000 (then the whole estate goes to surviving spouse).


Distribution: Decedent Survived by Children Only

Rule: If the decedent is survived by children only, and no child has predeceased the decedent, the estate passes to children in equal shares.


Distribution: Decedent Survived by Children and Issue of Predeceased Children

Rule: If the decedent is survived by children and the issue of predeceased children, the estate passes to ALIVE children, and the issue of dead children by representation per capita at each generation (notwithstanding any other devise of assets at the time of dead child's death) (E.g., D has children A, B, and C. C and B died, leaving grandchildren F and G. When D dies, the property goes 1/3 to A; then the remaining 2/3 shares are divided evenly among the grandchildren F and G). Grandchildren whose parents are alive take nothing from the decedent, and in-laws take nothing.


Distribution: Decedent Not Survived by Spouse or Issue

(1) All to parents/surviving parent; if none, then (2) All to issue of parents, e.g., siblings and issue of deceased siblings, per capita at each generation; if none, then (3) One-half to maternal grandparents/surviving grandparent, or if neither is living, to their children/grandchildren, per capita at each generation; and one-half to paternal grandparents (same); (4) If not survived by grandparents or their children/grandchildren on one side, then ALL to grandparents and children/grand children on the other side; (5) If only survived by great grandchildren of grandparents, then half to maternal great grandchildren in equal shares, and half to paternal great grandchildren in equal shares; (6) If not survived by great grandchildren on one side, then all to the great grandchildren on the other side; and (7) if not survived by grandchildren of grandparents (first cousins once removed), and nearest kin are great-great grandchildren or issue of great grandparents, then the estate escheats to New York.


Per Stirpes Distribution (versus per capita)

In New York, default distribution is per capita at each generation in both intestacy and will. In most states, the distribution is per stirpes, under which the issue of a pre-deceased child takes the share that the predeceased child would have taken, if alive. A will can elect per stirpes distribution. (Note: if only one person at the first generational level died, per capita results in the same distribution as per stirpes).


Inheritance Rights of Children: Adoptive Children

Generally, adopted children and their issue have full inheritance rights both ways. Children generally lose inheritance rights from birth parents upon adoption, unless the child is adopted by the spouse of a birth parent (then inheritance rights for both are okay). In the case of a child who is adopted by a relative, the child inherits the BIRTH relationship -unless- the DECEDENT was the adopting parent in which case the child inherits the adoptive relationship. (e.g., G has three sons, A, B, and C. B dies, leaving orphaned child D. A adopts D. G dies. D takes under the BIRTH relationship (so can inherit 1/3 of the estate rather than none). However, if A dies, D takes from A under the adoptive relationship).


Inheritance Rights of Children: Nonmarital Children

A nonmarital child has the full inheritance rights from the mother and mother's family. A mnonmarital child inherits from the birth father ONLY if paternity is established by one of four tests: (1) father marries mother after birth (legitimation by marriage); (2) An order of filiation in paternity suit is entered, adjudicating the man to be the cild's father; (3) the father files a witnessed and acknowledged affidavit of paternity with the Putative Father Registry; or (4) paternity is established by Clear and Convincing Evidence, including but not limited to DNA test; open/notorious acknowledgment of child; gifts/visits/participation in life, BUT SUPPORT ITSELF IS NOT ENOUGH. Can establish paternity before or after death of father, but won't go exhuming body for DNA.


Circumstances Disqualifying Spouse from Taking Intestate Share

"DISMAL": DIVORCE (final decree of divorce or annulment, valid under NY law); INVALID DIVORCE (if SURVIVING spouse procured a divorce/annulment not recognized under NY law); SEPARATION (final decree of separation was rendered against SURVIVING spouse; "agreement" of separation does not result in disqualification unless there is specific language in the agreement waiving the surviving spouse's rights under EPTL. Note also that no disqualification if final decree rendered against DECEASED spouse); MARRIAGE VOID because of incest, bigamy; and ABANDONMENT/LACK OF SUPPORT (SURVIVING SPOUSE abandoned or refused to support deceased spouse. Surviving spouse not disqualified if deceased spouse abandoned or refused to support him or her).


Operation of Disqualification of Spouse

Assume the surviving spouse pre-deceased the decedent, and drop the shares to the kids who whoever is next in line.


Slayer Statutes

New York has no "slayer" statutes per se, but the courts will create a constructive trust over spouse/party who kills decedent and stands to inherit. Joint tenancies are severed by one JT's killing of the other, so that the bad spouse gets only the amount he put in and not the dead spouse's share.