When a person dies without a valid will, the law calls it “dying intestate.” In New York, the Estates, Powers and Trusts Law (EPTL 4-1.1) dictates exactly who inherits and in what shares. The decedent has no say in the matter. There is no room for intent, preference, or family circumstances. The statute applies mechanically.
For Westchester County families, understanding the intestacy rules is important for two reasons: first, because dying without a will means losing control over the distribution of what may be a substantial estate; and second, because the intestacy rules frequently produce results that do not match what the decedent would have wanted.
The Distribution Rules
EPTL 4-1.1 establishes the following order of distribution:
Survived by a Spouse and Children
The surviving spouse receives the first $50,000 plus one-half of the remaining estate. The children (called “issue” in the statute) share the other half equally, by representation.
For a Westchester family with a $2,000,000 estate, this means the surviving spouse would receive $1,025,000 and the children would split $975,000. If the couple had intended for the surviving spouse to keep everything, the intestacy rules override that intent.
Survived by a Spouse and No Children
The surviving spouse receives the entire estate.
Survived by Children and No Spouse
The children share the entire estate equally, by representation. If a child has predeceased the decedent, that child’s share passes to that child’s own descendants.
Survived by Parents and No Spouse or Children
The surviving parent or parents receive the entire estate. If both parents survive, they share equally.
Survived by Siblings and No Spouse, Children, or Parents
The siblings share equally. Half-siblings are treated the same as full siblings under New York law (EPTL 4-1.1(a)(7)).
More Distant Relatives
If none of the above relatives survive the decedent, the estate passes to increasingly remote relatives: grandparents, aunts and uncles, first cousins, and so on. The statute traces the line through paternal and maternal kindred.
No Surviving Relatives
If no distributable relative can be found, the estate escheats to the State of New York.
Key Concepts
“By Representation”
When the statute says distribution is “by representation,” it means that if a beneficiary in a generation has predeceased the decedent, that beneficiary’s share passes down to that person’s own descendants. The shares are divided at the first generation that has at least one living member, and all members of that generation take equal shares.
For example: a decedent is survived by two of three children, and the deceased child left two grandchildren. The estate divides into thirds (one for each child at that generation). The two surviving children each take one-third. The two grandchildren split their parent’s one-third, each receiving one-sixth.
“Issue”
“Issue” means all descendants in a direct line: children, grandchildren, great-grandchildren. Adopted children are included as issue (EPTL 4-1.1(a)(1) cross-referenced with Domestic Relations Law 117). Stepchildren are not issue unless they have been legally adopted.
Non-Marital Children
Under current New York law, a non-marital child inherits from the mother in all cases. A non-marital child inherits from the father if paternity has been established by one of several methods: a court order of filiation, an acknowledgment of paternity filed with the appropriate registrar, the father openly and notoriously acknowledged the child as his own, or paternity was established by clear and convincing evidence after the father’s death (EPTL 4-1.2).
What Intestacy Does Not Cover
The intestacy statute governs only “probate assets” (property that would have passed under a will if one existed). The following assets pass outside of both the will and the intestacy statute:
Jointly held property. Real estate or bank accounts held as joint tenants with right of survivorship pass automatically to the surviving co-owner.
Beneficiary designations. Life insurance proceeds, retirement accounts (IRAs, 401(k) plans), and payable-on-death or transfer-on-death accounts pass to the named beneficiary.
Trust assets. Property held in a revocable or irrevocable trust passes according to the trust instrument.
This distinction matters. A decedent’s “estate” for intestacy purposes may be much smaller than the decedent’s total net worth, because many assets pass outside of the estate entirely.
Administration of an Intestate Estate
When there is no will, there is no named executor. Instead, a distributee (an heir under the intestacy statute) must petition the Surrogate’s Court for Letters of Administration under SCPA Article 10. The court appoints an administrator, who serves the same function as an executor but without the benefit of the decedent’s instructions.
SCPA 1001 establishes a priority list for who may be appointed administrator:
- The surviving spouse
- The children
- The grandchildren
- The father or mother
- The brothers or sisters
- Any other distributee
If the person with the highest priority does not petition, the court may appoint a person with lower priority, or the higher-priority person may renounce in favor of another distributee.
Unlike an executor, an administrator is generally required to post a bond (SCPA 801), which is a cost that the estate bears. This is one of the practical disadvantages of dying intestate: the bond requirement increases the cost of estate administration.
For more on the administration process, see Letters of Administration in New York.
The Surviving Spouse’s Elective Share
Even when there is a will, the surviving spouse has a right to a minimum share of the estate under EPTL 5-1.1-A. This right, known as the “elective share,” is the greater of $50,000 or one-third of the net estate.
In intestacy, the elective share is less relevant because the surviving spouse already receives a statutory share under EPTL 4-1.1. However, the elective share calculation includes “testamentary substitutes” (certain lifetime transfers, joint accounts, and retirement benefits) that are not part of the probate estate. In some cases, the elective share may be more favorable than the intestate share.
For more on this topic, see The Elective Share in New York.
Small Estate Alternative
If the decedent’s personal property (not including exempt property under EPTL 5-3.1) has a gross value of $50,000 or less, the estate may qualify for small estate administration under SCPA Article 13. This simplified procedure avoids the full administration process and is available whether the decedent died with or without a will.
For more detail, see Small Estate Administration in New York.
Why Intestacy Is a Problem
The intestacy rules are not inherently bad. For some families, the statutory distribution may align with what the decedent would have chosen. But in many situations, intestacy produces results that are clearly contrary to the decedent’s wishes:
Blended families. If a decedent has children from a prior marriage and a current spouse, the surviving spouse receives only $50,000 plus half the estate. The children from the prior marriage receive the rest. Many people in this situation would have wanted to provide differently for their current spouse.
Unmarried partners. An unmarried partner receives nothing under the intestacy statute, regardless of the length or nature of the relationship.
Unequal treatment of children. The statute divides equally among children. A decedent who wanted to leave more to one child (perhaps a child with special needs, or a child who served as caregiver) cannot do so without a will.
Charitable intent. A decedent who wanted to leave a portion of the estate to a charitable organization cannot do so through intestacy. Only a will or trust can direct a charitable bequest.
No executor choice. The administrator is appointed based on the statutory priority list, not on the decedent’s assessment of who is best suited for the role.
Estate tax planning. The intestacy statute does not account for estate tax planning. For Westchester families near the New York estate tax exclusion ($7,350,000 in 2026), the absence of credit shelter trust provisions or other planning tools can result in significant, avoidable tax liability.
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