Probate is the process in which a will is proven in court and accepted as a valid and legal set of instructions from a deceased. In New York, the executor of a will is responsible for filing for probate and providing the original will and a copy of the death certificate to the Surrogate’s Court. This is the first step in settling the deceased’s estate.

Intestacy, on the other hand, is the process for settling the affairs of a deceased person who did not create a will. It is handled in a similar manner to probate, but since there is no will, the court appoints a person to act as administrator of the estate. In most cases, the administrator chosen is a spouse, child, grandchild, parent, or sibling.

Responsibilities of an Intestate Administrator

This administrator has the same responsibilities as an executor managing a will in probate, and is responsible for managing assets, paying creditor claims, and distributing assets. However, without a will, the deceased’s heirs are determined by New York statute, and certain heirs are given priority over others to inherit assets. The wishes of the deceased, if known, are not necessarily honored, unless they just happen to be in line with the state procedure.

The way in which a deceased’s assets are distributed without a will are fairly standard in New York. According to the state’s intestate statutes, a surviving spouse is entitled to inherit the decedent’s entire estate when there are no children. If the deceased has children, the surviving spouse gets the first $50,000 in assets, and the remaining estate is divided 50/50 between the spouse and the children. Siblings and parents are entitled to assets when there is no surviving spouse, children, or grandchildren.

What If the Deceased Has No Next of Kin?

If a person dies without any immediate family members, anyone related to that person by blood has a right to the deceased’s assets. This includes aunt and uncles, cousins, and so forth, as long as they are able to prove their relation.

When a self-proclaimed heir makes a claim to a will, a kinship hearing is scheduled, at which point the supposed heir must present evidence of his or her relation, including birth certificates and other legal documents, DNA evidence, or a family tree. Kinship hearings are complicated and anyone who believes he or she is entitled to an estate should seek the counsel of an experienced attorney.

Having a Last Will & Testament prepared for you is important to ensure that your wishes are carried out upon your death. You may want to make special provisions for family members, friends of charities. Trust may be needed to ensure that a bequest is used for the purposes you intended and not squandered. While the laws of intestacy will ensure that your property is distributed, you can chart your own course and protect your family and their interests with a Last Will & Testament.

If you have questions about New York’s intestate laws or you wish to speak to someone about anything related to estate planning, contact the Law Offices of Elan Wurtzel at 516.822.7866.


Sources: Intestate Succession Rules