How to Probate Without a Will in New York Frequently Asked Questions

Under the rules of intestate succession, in New York your next of kin will be entitled to receive your assets upon your death. First in line to receive your property is your spouse and your children. For purposes of intestacy rules, children who are legally adopted are treated the same as biological children, while foster children and stepchildren who were never legally adopted are not treated like biological children. Under intestacy rules there would receive nothing from your estate. Similarly, biological children adopted out are not entitled to an intestate share, while posthumous children are. Grandchildren are entitled to receive their parent’s share if their parent (your son or daughter) predeceases you.

• Surviving spouse and children. The surviving spouse gets the first $50,000 from the estate, plus 50% of the remainder of the estate. Children receive the other 50% of the estate, divided equally.
• Surviving spouse no children. Spouse receives entire estate.
• Children no surviving spouse. Children receive entire estate divided equally.
• Parents, but no surviving spouse and no children. Parents receive the entire estate divided equally.
• Siblings, but no parents, surviving spouse or children. Siblings receive entire estate divided equally.

As you can see, under the rules of intestate succession only relatives of the decedent are entitled to receive an intestate share. If you would like to leave property to friends, employees, other nonrelatives, or institutions you have to do so in a will or through a trust.

As an experienced intestate succession attorney in New York will explain, the best way to avoid intestacy is to execute a will. The will must be executed in a manner that is consistent with New York estate law. This means that it must be in writing, you as the testator must sign it, and two witnesses must also sign it. In addition, you must have executed under your own free will, meaning that if you were under duress or subject to undue influence when you executed the will, then the will would not be valid. Furthermore, you must execute it when you are of sound mind. If a testator suffers from a mental incapacity at the time of signing the will, then the will would not be valid.

In addition, if your will does not have the proper safeguards in it, it is possible that part of your estate may end up being subject to intestacy rules. For example, if you do not have a residuary clause in your will, estate property that ends up in as part of your residuary estate because you did not specifically leave it to anyone will fall into intestacy. Thus, it is not only important to have a will, it is important that your will is properly drafted to ensure that no part of your probate estate is subject to the rules of intestate succession.

As an experienced intestate succession attorney in New York will explain, if there is no will, then the New York Surrogate’ s Court judge with jurisdiction over the estate will appoint an estate administrator to manage your estate during the administration process. Anyone interested in serving as administrator must petition the court for letters of administration. The court will only appoint a petitioner who is eligible to be appointed and who meets the qualifications for the job.

Once the administrator is appointed, the steps in how to probate without a will in New York are very similar to the steps in the administration process when there is a will.