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Probate is the process of having a deceased person’s will validated by a special court known as the Surrogate’s Court, which also handles inheritance law cases, including the administration of estates. 

Out of the 150,423 cases filed in the Surrogate’s Court in 2023, 41,248 cases were for probate, 20,386 for administration, and 30,122 were voluntary administration cases. These figures were according to the annual report published by the New York State Unified Court System

Probate proceedings, which validate a deceased person's will and oversee the transfer of assets to beneficiaries, can be drawn out, difficult, and expensive. It makes sense that so many people take action to spare their families the trouble by planning what happens to their estate early on. 

This article discusses New York’s inheritance laws, which include information about what will happen to a person’s estate when they pass away, with or without a will. It also provides legal resources to assist individuals and families who are going through legal predicaments related to their inheritance.

What Happens if Someone Dies With a Will in New York?

Upon a person’s death, the heirs are determined through the existence of a will, the identity of the surviving relatives, and their connection to the decedent.

What Is a Will?

A last will and testament, also known as a will, is a legal document that specifies an individual’s wishes about their estate after death. It identifies an executor to carry out the deceased’s wishes and indicates how their property should be divided. It can also appoint a guardian for their children. 

The will should be properly executed to prevent future will contests. Some of the requirements include the testator’s (the person creating the will) signature at the end of the document. The person making the will (the testator) must state to two witnesses that the document is their will and sign it in front of them. The witnesses must also sign the will upon the testator’s request and in their presence. 

The will is kept confidential until the testator dies. At that point, it becomes public record when submitted to probate or voluntary administration, depending on the value of the estate left behind.

Probate Process

In New York, when a person dies with a will and leaves assets worth more than $50,000, the will must be admitted to the Surrogate’s Court for probate. The decedent’s family member must file the petition for probate and supporting documents in the county where the decedent used to reside. The court will then issue a decree to notify concerned parties regarding the probate action. 

The petitioner must establish the legitimacy of the will. To prove the will is valid, the court may question the witnesses under oath. However, this is not necessary if the testator and witnesses signed a self-proving affidavit. 

The court then designates an executor, who must submit a bond to guarantee that they will do the job correctly. If the Surrogate’s Court determines that the executor is qualified, they will issue a decree granting probate. Next, they will give the executor a certificate of authority to gather the decedent’s assets, settle taxes and debts, and distribute the assets to the beneficiaries according to the will. 

Probate lawyers in New York can represent executors and estates in legal proceedings such as court hearings and dispute negotiations.

Contesting a Will

An interested party, such as a beneficiary, may contest a will if they have legal standing or a direct interest in the outcome. They should also have valid grounds to contest a will. These are as follows:

  • Lack of testamentary capacity: This happens when the testator does not have a general understanding of their property, family members, heirs, and beneficiaries. For a will to be valid, the testator should understand that they are signing the will and what it means to do so.

  • Lack of validity: If the will was not executed properly, it is considered invalid. An example is when there is no testator’s signature at the end of the document.

  • Undue influence: This occurs when someone pressures a vulnerable person into changing their will against their true wishes.

  • Duress: The will was made in situations involving extreme pressure, such as threats or violence, from someone who has a financial interest in the testator’s property.

  • Fraud: When someone uses lies to make the will beneficial for them, fraud is said to happen. 

After determining the reasons for contesting the will, the interested party must investigate and decide whether to proceed with the objection. This is also known as pre-objection discovery. After which, the interested party can file an objection in court during the probate process. 

After filing the objection, both parties should gather evidence to support their positions. They may also submit pre-trial motions to address legal and procedural issues. These include motions to dismiss, requests for summary judgment, and motions to compel discovery. If not resolved, the case goes to trial, and the judge or jury will decide on the validity of the will.

To prevent will contests, the testator may include a no-contest clause in their will and secure a letter from a psychiatrist indicating their level of capacity before and after executing a will. Another option is to use trusts instead of wills. New Yorkers are advised to consult with an estate planning lawyer who can help them ensure their wishes are carried out when they die. 

What Happens if Someone Dies Without a Will in New York?

In New York, if a person dies without a will (also called dying intestate), an administration proceeding should be filed. The decedent’s assets are to be distributed according to the state’s intestate succession laws. The order of beneficiaries is as follows:

  1. Spouse (no children) - the spouse inherits everything.

  2. Children (no spouse) - the children inherit everything. If the child dies before the decedent and had children of their own, their children inherit in their stead. 

  3. Spouse and children - the spouse inherits the first $50,000 and half of the balance. The remaining balance goes to the children.

  4. Parents (no spouse and children) - the parents inherit everything.

  5. Siblings (no spouse, children, or parents) - the siblings inherit everything.

Some assets are not affected by these laws because they do not pass through the probate process. The following assets pass to the decedent’s beneficiary or the surviving co-owner:

  • Property transferred to a living trust.

  • Life insurance payments with a named beneficiary.

  • Funds in retirement accounts with a named beneficiary, e.g., 401(k) and IRA.

  • Securities in a transfer-on-death account.

  • Real estate with a transfer-on-death deed.

  • Vehicles with transfer-on-death registration.

  • Property with joint ownership or tenancy.

Spousal Rights

A spouse is entitled to inherit a portion of the decedent’s estate unless the spouse waives their rights in a prenuptial agreement. 

If the surviving spouse is not named in the will, they can file for their share at the Surrogate’s Court. The state can require the spouse to file a right of election document, which protects the spouse and children from losing their share of the estate.

Children’s Rights

In New York, children can only inherit assets from their parents if there is a legal parent-child relationship. Adopted children have the same rights as biological children. Non-marital children, or those who are born outside marriage, can only inherit from their father if paternity is established. Children born after the decedent’s death also have an inheritance.

Stepchildren and foster children cannot inherit unless the deceased person had legally adopted them. Children of the decedent who were placed for adoption before they passed away and who have been adopted by another family are not entitled to inherit anything unless adopted by the decedent’s spouse.

Grandchildren may only inherit something if the decedent’s child died before the decedent. 

The Rights of Other Surviving Relatives

If the decedent was single and childless, their parents would inherit their property. If the parents predeceased the decedent, then their siblings will evenly split the property. 

Other relatives who may inherit the decedent’s estate are as follows:


Who will inherit the estate?

No parents and siblings

Paternal and maternal grandparents

No grandparents

Paternal and maternal aunts and uncles

No aunts and uncles

Nieces and nephews

Estates With No Heirs

If a person dies intestate and does not have any heir, descendant, or named beneficiary, the state will obtain ownership rights to the estate according to the abandoned property law. However, this rarely happens because New York inheritance laws are made to get the property to someone, even if they are remotely related to the decedent. The court reviews every possible option to identify the heir to the decedent’s estate. 

Small Estate Proceedings in New York

If a person dies with an estate valued at $50,000 or less, the family can use a simplified court process called a small estate proceeding or voluntary administration instead of probate. This applies whether there is a will or not. 

The $50,000 limit includes assets that are in the decedent’s name, such as stocks, bonds, bank accounts, cars, and insurance policies. Voluntary administration does not give the petitioner authority to administer real property. Voluntary administrators are also not authorized to file a wrongful death lawsuit or a similar action on behalf of the deceased.

If the decedent died with a will, an executor or residuary beneficiary (in the absence of an executor) should file an application at the Surrogate’s Court. The requirements include the death certificate, the original and a photocopy of the will, a list of the assets and their corresponding values, and a summary of the decedent’s unpaid creditors. 

The petitioner should also submit a fully completed and notarized small estate form and family tree affidavit. The latter is needed when the beneficiaries are cousins, uncles, aunties, or grandparents, or if there is only one beneficiary.

Without a will, a distributee (a legal inheritor in intestate cases) has the right to become the voluntary administrator in order of nearest relationship. They can choose to forgo this right by completing the Renunciation of Voluntary Administration Form. Then, those with lesser rights can become voluntary administrators. 

After submitting the small estate affidavit petition and the supporting documents, the Surrogate’s Court appoints a voluntary administrator. It also issues a certificate for all the assets listed before the voluntary administrator collects and distributes them according to the law. 

Unique Situations in New York Inheritance Law

There are some situations that follow different guidelines regarding inheritance laws in New York. Half-relatives inherit assets as if they were whole. For instance, if you and your sister have the same mother but a different father, she has the same rights as she would if you had both parents in common. 

Relatives conceived before a person's death but born after the death inherit assets as though they were born before the decedent passed away. For example, if a person dies while his wife is pregnant, the baby is eligible to inherit the father’s assets. 

Children who are born through artificial insemination are also entitled to inherit from the decedent if they meet the following requirements:

  • The decedent consented in writing to use their genetic material after death.

  • The consent was made within seven years of the decedent’s death.

  • The child was in utero within 24 months of the decedent’s death.

  • The child was born not later than 33 months after the decedent’s death.

Joint tenancy is one of the most common ways to avoid probate. When one of the owners of a joint tenancy passes away, the remaining owner inherits the property immediately, without going through probate. However, a joint tenant who has been convicted of murdering their co-tenant will not be qualified to inherit any money from the joint tenant’s bank account. The only money that the convicted joint tenant is eligible to receive is what they contributed to the account. 

Furthermore, relatives are entitled to get their intestate share, whether or not they are U.S. citizens. For instance, people can name their non-U.S. citizen spouse as beneficiary for retirement accounts or life insurance policies. 

Does New York Impose Inheritance and Estate Taxes?

New York does not have an inheritance tax. However, estates worth more than $6.58 million (as of 2023) must pay a state estate tax ranging from 3.06% to 16%.

The New York estate tax is also different from other state’s estate taxes. Other states impose estate tax on the amount that exceeds the basic exemption amount. For instance, if a state’s exemption is $2 million and the taxable estate is worth $3 million, then the excess amount of $1  million would be subject to estate tax. In New York, however, the tax is for the entire value of the estate. If a person left an estate worth $8 million, then the tax for the entire estate’s value of $8 million should be paid.

The estate tax is not the same as the federal estate tax imposed on estates worth over $12.92 million (as of 2023).

The executor should pay the state and federal estate taxes within nine months of the decedent’s date of death. They should file Form ET-706 and federal Form 706 with the tax department. Executors may also request an extension to file the return and pay the estate tax by completing Form ET-133

In general, the Department of Taxation and Finance grants a six-month extension, but if the payment will result in excessive hardship to the estate, they may allow an extension of up to four years.

Legal Resources Related to Inheritance Law in New York

New York Surrogate’s Court

The New York Surrogate's Court hears cases related to the affairs of the decedent. Its website answers some of the most frequently asked questions about inheritance laws. It also has fillable and downloadable information sheets, checklists, and forms available on the Administration and Small Estates Department’s webpage. Its online help center provides information about court rules and statutes, as well as procedural matters, for unrepresented New Yorkers.

New York State Bar Association

The New York State Bar Association has been facilitating justice administration, developing and promoting law reforms, and elevating the standards of the legal profession throughout the state since 1876. The organization advocates for federal and state legislation. It also connects New Yorkers who are seeking attorneys through the NYSB Lawyer Referral and Information Service, which can be reached by sending an email to or calling (800) 342-3661.

New York State Unified Court System

The New York State Unified Court System lists down help centers and community organizations that assist New Yorkers who do not have an attorney. It provides information about the court procedures and guidance through the processes. It does not offer legal advice and representation.

New York State Department of Taxation and Finance

The New York State Department of Taxation and Finance provides information on matters related to estate tax, including tax rates and filing requirements for residents and non-residents. Executors and personal representatives may also download estate tax forms from the website. For inquiries, contact the Estate Tax Information Center at (518) 457-5387 or (518) 457-5431 to order publications and forms.

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