What Happens When There Is No Will: A Guide to Intestate Succession in New York and New Jersey

A loved one passing away is bound to be a stressful time. If your loved one passed away without a will, known as dying “intestate,” this can add confusion to your grief. Your loved one probably had assets and property, but there is no legal document identifying their wishes for distributing their estate. So, what happens if there is no will to guide the settling of your loved one’s estate?

If there is no will, the estate is passed through a process known as intestate succession. Through intestate succession, the estate is distributed according to the intestate succession laws of the state where the deceased lived. As experienced New York and New Jersey estate planning attorneys, we are very familiar with the intestate succession process in New York and New Jersey. This article will provide you with an overview of the process in both states and highlight the differences between the two states.

Of course, we emphasize the importance of having a will. As you will soon learn, intestate succession laws may not alight with your preferences or the best interests of your loved ones. Thus, we encourage you to contact an estate planning attorney today to begin working on your estate plan if you have not done so already.

Intestate Succession in New York

Assets Subject to Intestate Succession

In New York, only assets that would have passed through the deceased’s will are subject to intestate succession. In other words, assets that are not part of the probate estate, such as jointly owned property, life insurance proceeds with a named beneficiary, retirement accounts with a designated beneficiary, and assets held in a living trust, are not subject to intestate succession laws.

Distribution of Assets in New York

The distribution of the deceased’s assets is dependent upon the surviving relatives. Here are some illustrative examples of how assets are distributed under New York’s intestate succession laws:

• Surviving spouse, but no children: Surviving spouse inherits the entire estate.
• Surviving children, but no spouse: Children inherit the entire estate, divided equally among them.
• Surviving spouse and children: The spouse inherits the first $50,000 of the estate, plus half the remaining balance. The children share the remaining amount equally.
• Surviving parents, but no spouse or children: The parents inherit the entire estate, divided equally between them.
• Surviving siblings, but no spouse, children, or parents: The siblings inherit the entire estate, divided equally among them.
• Other relatives: If there is no surviving spouse, children, parents, or siblings, more distant relatives may inherit the estate.

Note that if a child dies before the deceased, but had children of their own (the deceased’s grandchildren), the grandchildren would step into the deceased’s child’s place and inherit in place of the child.

Other Considerations

Some other factors that may impact the intestate succession process include:

• Adopted children: In New York, legally adopted children are treated the same as biological children for purposes of intestate succession.
• Half-siblings: Under New York law, half-siblings inherit as if they were full siblings.
• Children born outside of marriage: If paternity is established, children born outside of marriage have the same inheritance rights as those born to married parents.
• Posthumous children: Children conceived before the deceased’s death but born after are able to inherit as long as they survive at least 120 hours after birth.
• Disclaiming inheritance: If an heir wants to decline their inheritance, they must do so in writing within nine months of the deceased’s death.

Intestate Succession in New Jersey

Assets Subject to Intestate Succession

Like New York, only assets subject to the probate process are subject to intestate succession in New Jersey. Assets such as property held in a living trust, jointly owned property, life insurance proceeds with a named beneficiary, retirement accounts with a designated beneficiary, and payable-on-death bank accounts are not subject to the intestate succession laws.

Distribution of Assets in New Jersey

Like the intestate succession scheme in New York, in New Jersey, the distribution of the deceased’s assets is dependent upon the surviving relatives. Here are some scenarios of how assets are distributed under New Jersey’s intestate succession laws:

• Surviving children, but no spouse: Children inherit the entire estate, divided equally among them.
• Surviving spouse, but no descendants or parents: Spouse inherits the entire estate.
• Surviving spouse and descendents from the deceased & spouse, and spouse has no other descendants: Spouse inherits the entire estate.
• Surviving spouse & descendants from the deceased & spouse, and the spouse has descendants from other relationships: Spouse inherits the first 25% of the estate (not less than $50,000 or more than $200,000), plus half of the remaining balance. The deceased’s descendants inherit the remaining estate.
• Surviving spouse & descendants from the deceased & someone other than the spouse: Spouse inherits the first 25% of the estate (not less than $50,000 or more than $200,000), plus half of the remaining balance. The deceased’s descendants inherit the remaining estate. 
• Surviving spouse & parents: Spouse inherits the first 25% of the estate (not less than $50,000 or more than $200,000), plus 3/4 of the remaining balance. The parents inherit the remainder.
• Surviving parents, but no spouse or descendants: Parents inherit the entire estate, divided equally.
• Surviving siblings, but no spouse, descendants, or parents: Siblings inherit the entire estate, divided equally.

Additional Considerations

Other factors which may affect the intestate succession process include:

• Adopted children: Legally adopted children have the same inheritance rights as biological children in New Jersey.
• Foster children and stepchildren: Foster children and stepchildren who were never legally adopted are not automatically entitled to share. However, if the deceased dies without any other relatives, stepchildren have the right to inherit.
• Children born outside of marriage: If paternity is acknowledged and established under New Jersey law, children born outside of marriage have the same rights as those born to married parents.
• Posthumous children: Children conceived before the deceased’s death but born after are able to inherit as long as they survive at least 120 hours after birth.
• Grandchildren: Grandchildren will only receive a share of the estate if their parent (the deceased’s child) is not alive to receive their share.

Comparing New York and New Jersey’s Intestate Succession Laws

As you can see, New York and New Jersey intestate succession laws are largely similar. However, we would like to highlight a few key differences:

• Distribution to the surviving spouse: In both New York and New Jersey, if the deceased is survived by a spouse but no children, the spouse inherits the entire estate. However, in New York, if there are children, the spouse receives the first $50,000 plus half of the remaining estate, with the remainder going to the children. In New Jersey, on the other hand, the distribution of the estate to the spouse and children depends on whether the children are from the surviving spouse or another relationship. The spouse’s share may range from 100% to a minimum of 25% of the estate, as explained above.
• Distribution to parents: In New York, if the deceased is survived by parents but no spouse or children, the parents inherit the entire estate. In New Jersey, however, if the deceased is survived by parents and a spouse, but no children, the spouse receives the first 25% of the estate plus ¾ of the balance, with the remainder going to the parents.
• Inheritance rights to stepchildren: In New York, stepchildren do not inherit under intestate succession unless they were legally adopted. In contrast, in New Jersey, stepchildren can inherit if the deceased dies without other relatives, even if the stepchildren were not legally adopted.

Conclusion

Now that you know what happens if there is no will, you also know that dying without a will can be disruptive to your wishes for how you’d like your estate distributed after you die. Thus, it is essential to consult with an experienced New Jersey and New York estate planning attorney to begin writing your will today. At AJC Law, we are excited to work with you to complete this essential component of your estate plan. Contact us for a consultation via our contact form, or by calling us at (201) 273-9763.

This article is for informational purposes only. It is not intended as legal advice. In the event you would like to speak with a lawyer about the specifics of your case, contact The Chamberlain Law Firm at (201) 273-9763 to schedule a consultation.