What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”. When there is no will, and a person dies, the laws of intestacy apply. All States have such laws, essentially a logical order with the closest relatives inheriting. In New York, it goes like this:
– if a spouse and no children, all to the spouse
– if children and no spouse, all to the children, per stirpes *
– if spouse and children, first $50,000 to the spouse, then 50% to the spouse and remaining 50% to the children, per stirpes *
– if no spouse or children, all to the parent(s)
– if no parents, all to siblings (or children of predeceased siblings, a/k/a nieces/nephews), by representation **
– if no siblings or nieces/nephews, you start getting to aunts/uncles and cousins. (lots of special rules)
– if no aunts/uncles/cousins, you go to first cousins once removed, ie – children of pre-deceased first cousins (even more special rules)
* I try to avoid using legal lingo, but “per stirpes” come up a lot, and is mentioned in lots of wills. It means “per the lineage”, and can be illustrated with a simple example. If an unmarried person dies, and had two adult children, but one of the children had pre-deceased but had three children (grandchildren to the person who died), the estate would go 50% to living child, and 50% split 3 ways among the children of the pre-deceased child.
** Sibling/niece/nephew cases are not done per stirpes, but “by representation”. The best way to calculate this is to say its sort of like per-stirpes BUT nobody has an advantage or disadvantage by being in a larger or smaller family. A simple example to illustrate this: The decedent was not married, had no children, and parents pre-deceased. He had three siblings, one is living and the other two pre-deceased. Of the two who pre-deceased, one had two children and the other had four children. Under inheritance by representation, the surviving sibling would inherit 1/3, and the remaining 2/3 would be divided equally among the six nieces/nephews.
The above is a rough sketch. There are rules to cover EVERY situation you could think of, and they ALL come up. When the question is “which relatives are entitled to what percentage”, there is always an answer to that question. Of course, sometimes it is not so clear who is legally related. As you might imagine, we sometimes have to determine who was married (or divorced), or who was somebody’s parent, or was somebody legally adopted, or whatever became of somebody who has gone missing.
Rarely a dull moment!