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Estate, Powers and Trusts, § 4-1.1: Descent and Distribution of Decedent's Estate

New York's Estate, Powers and Trusts law outlines rules regarding how property of a decedent will be distributed if it is not mentioned in the decedent's will. These rules are known as New York's rules of intestate succession. Generally intestate succession rules are applied when someone passes away without leaving a will. Such rules will also be applied to property that is not mentioned in a will and to which other New York Probate laws do not apply. In such cases the Probate Court will look to New York's intestacy rules to identify the decedent's legal heirs and to determine to what portion of the estate each heir is entitled. In the absence of provisions in a will, New York Estate law provides that your spouse and your children will inherit your property. Your spouse will inherit $50,000 and 50% of the rest of your estate. The other 50% of your property will go to your children in equal shares. If you pass away without a surviving spouse or children, then your estate will go to your surviving relatives in the following priority: parents, siblings, grandparents, aunts and uncles, and first cousins. The best way to avoid statutory distribution of your assets is to execute a will. To help you create and execute an estate plan that is consistent with your goals, contact an experienced Queens Estate Lawyer who will be able to educate you on the types of estate planning tools that you should consider and who will help you implement a plan.


In Matter of Shumavon, 260 A.D.2d 140 (N.Y. App. Div., 1999), decedent Dorothy Shumavon died intestate. She was not survived by a spouse, children or parents. She was survived by three paternal first cousins and 20 paternal first cousins once removed. The first cousins once removed were great-grandchildren of the decedent's grandparents. The Surrogate Court issued a decree that Shumavon's three first cousins were the only relatives entitled to her estate. Three of the first cousins once removed objected. The court rejected the first cousins once removed as the statute is clear that while grandchildren of a decedent's grandparents are considered issue, while great-grandchildren are not.

Related Statutory Provisions
  1. Inheritance by non-marital children: Estates, Powers and Trust, § 4-1.2
  2. Disqualification of parent to take intestate share: Estates, Powers and Trust, § 4-1.4
  3. Other disqualifications: Estates, Powers and Trust, § 4-1.5
  4. Disqualification of joint tenant in certain instances: Estates, Powers and Trust, § 4-1.6
Estate, Powers and Trusts, § 4-1.1- Descent and distribution of a decedent's estate

The property of a decedent not disposed of by will shall be distributed as provided in this §. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows:

  1. If a decedent is survived by:
    1. A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.
    2. A spouse and no issue, the whole to the spouse.
    3. Issue and no spouse, the whole to the issue, by representation.
    4. One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.
    5. Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.
    6. One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.
    7. Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.
  2. For all purposes of this §, decedent's relatives of the half blood shall be treated as if they were relatives of the whole blood.
  3. Distributers of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime.
  4. The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law.
  5. A distributive share passing to a surviving spouse under this § is in lieu of any right of dower to which such spouse may be entitled.
Queens Estate Lawyer

To ensure that your wishes are fulfilled and that your family and friends are taken care of in the manner that you select, it is important that you contact an experienced representative who will help you create a will that is part of an overall estate plan. The staff at Stephen Bilkis & Associates, PLLC has years of experience drafting estate plans for clients as well as trusts, powers of attorney, advanced health care directives and other estate planning documents. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

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