Estate Planning

If you die without a valid will while residing in the State of New York, you are said to have died "intestate."  In order to determine who will receive your property if you die intestate, the State of New York has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see New York Intestacy Laws | Intestate Succession statutes.

 

 

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 section. 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:

(a) 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.

(b) For all purposes of this section, decedent's relatives of the half blood shall be treated as if they were relatives of the whole blood.

(c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime.

(d) 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.

(e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled.

Laws of New York, § 4-1.1

 

Inheritance by non-marital children

(a) For the purposes of this article:

          (1) A non-marital child is the legitimate child of his mother so that he and his issue inherit from his mother and from his maternal kindred.

          (2) A non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if:

                    (A) a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity or the mother and father of the child have executed an acknowledgment of paternity pursuant to section four thousand one hundred thirty-five-b of the public health law, which has been filed with the registrar of the district in which the birth certificate has been filed or;

                    (B) the father of the child has signed an instrument acknowledging paternity, provided that

                              (i) such instrument is acknowledged or executed or proved in the form required to entitle a deed to be recorded in the presence of one or more witnesses and acknowledged by such witness or witnesses, in either case, before a notary public or other officer authorized to take proof of deeds and

                              (ii) such instrument is filed within sixty days from the making thereof with the putative father registry established by the state department of social services pursuant to section three hundred seventy-two-c of the social services law, as added by chapter six hundred sixty-five of the laws of nineteen hundred seventy-six and

                              (iii) the department of social services shall, within seven days of the filing of the instrument, send written notice by registered mail to the mother and other legal guardian of such child, notifying them that an acknowledgment of paternity instrument acknowledged or executed by such father has been duly filed or;

                    (C) paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own; or

                    (D) a blood genetic marker test had been administered to the father which together with other evidence establishes paternity by clear and convincing evidence.

          (3) The existence of an agreement obligating the father to support the non-marital child does not qualify such child or his issue to inherit from the father in the absence of an order of filiation made or acknowledgement of paternity as prescribed by subparagraph (2).

          (4) A motion for relief from an order of filiation may be made only by the father and a motion for relief from an acknowledgement of paternity may be made by the father, mother or other legal guardian of such child, or the child, provided however, such motion must be made within one year from the entry of such order or from the date of written notice as provided for in subparagraph (2).

(b) If a non-marital child dies, his surviving spouse, issue, mother, maternal kindred, father and paternal kindred inherit and are entitled to letters of administration as if the decedent were legitimate, provided that the father and paternal kindred may inherit or obtain such letters only if the paternity of the non-marital child has been established pursuant to provisions of clause (A) of subparagraph (2) of paragraph (a) or the father has signed an instrument acknowledging paternity and filed the same in accordance with the provisions of clause (B) of subparagraph (2) of paragraph (a) or paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own.

Laws of New York, § 4-1.2

 

Disqualification of parent to take intestate share

(a) No distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while such child is under the age of twenty-one years:

          (1) has failed or refused to provide for the child or has abandoned such child, whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child; or

          (2) has been the subject of a proceeding pursuant to section three hundred eighty-four-b of the social services law which:

                    (A) resulted in an order terminating parental rights, or

                    (B) resulted in an order suspending judgment, in which event the surrogate's court shall make a determination disqualifying the parent on the grounds adjudicated by the family court, if the surrogate's court finds, by a preponderance of the evidence, that the parent, during the period of suspension, failed to comply with the family court order to restore the parent-child relationship.

(b) Subject to the provisions of subdivision eight of section two hundred thirteen of the civil practice law and rules, the provisions of subparagraph one of paragraph (a) of this section shall not apply to a biological parent who places the child for adoption based upon:

          (1) a fraudulent promise, not kept, to arrange for and complete the adoption of such child, or

          (2) other fraud or deceit by the person or agency where, before the death of the child, the person or agency fails to arrange for the adoptive placement or petition for the adoption of the child, and fails to comply timely with conditions imposed by the court for the adoption to proceed.

(c) In the event that a parent or spouse is disqualified from taking a distributive share in the estate of a decedent under this section or 5-1.2, the estate of such decedent shall be distributed in accordance with 4-1.1 as though such spouse or parent had predeceased the decedent.

Laws of New York, § 4-1.4

 

Other disqualifications

No estate property, whether passing by intestacy or otherwise, which has its situs in this state, shall pass to any other state or territory of the United States, or to any foreign country or sovereignty in the event of the absence of an individual heir, distributee, legatee or owner of said property, but shall pass as abandoned property to the state of New York, and shall be held as such property pursuant to the abandoned property law.

Laws of New York, § 4-1.5

 

Disqualification of joint tenant in certain instances

Notwithstanding any other provision of law to the contrary, a joint tenant convicted of murder in the second degree as defined in section 125.25 of the penal law or murder in the first degree as defined in section 125.27 of the penal law of another joint tenant shall not be entitled to the distribution of any monies in a joint bank account created or contributed to by the deceased joint tenant, except for those monies contributed by the convicted joint tenant. Upon the conviction of such joint tenant of first or second degree murder and upon application by the prosecuting attorney, the court, as part of its sentence, shall issue an order directing the amount of any joint bank account to be distributed pursuant to the provisions of this section from the convicted joint tenant and to the deceased joint tenant's estate. The court and the prosecuting attorney shall each have the power to subpoena records of a banking institution to determine the amount of money in such bank account and by whom deposits were made. The court shall also have the power to freeze such account upon application by the prosecuting attorney during the pendency of a trial for first or second degree murder. If, upon receipt of such court orders described in this section, the banking institution holding monies in such joint account complies with the terms of the order, such banking institution shall be held free from all liability for the distribution of such funds as were in such joint account. In the absence of actual or constructive notice of such order, the banking institution holding monies in such account shall be held harmless for distributing the money according to its ordinary course of business. For purposes of this section, the term banking institution shall have the same meaning as provided for in paragraph (b) of subdivision three of section nine-f of the banking law.

Laws of New York, § 4-1.6

 

[Reference - New York's Intestacy laws]

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If you die without a valid will while residing in the State of New Mexico, you are said to have died "intestate."  In order to determine who will receive your property if you die intestate, the State of New Mexico has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see New Mexico Intestacy Laws | Intestate Succession statutes.

 

 

Intestate estate

A.     Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in the Uniform Probate Code [this chapter], except as modified by the decedent's will.

B.     A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share.

New Mexico Statutes, 45-2-101

 

Share of the spouse

The intestate share of the surviving spouse is determined as follows:

A. as to separate property:

          (1) if there is no surviving issue of the decedent, the entire intestate estate; or

          (2) if there is surviving issue of the decedent, one-fourth of the intestate estate; and

B. as to community property, the one-half of the community property as to which the decedent could have exercised the power of testamentary disposition passes to the surviving spouse.

New Mexico Statutes, 45-2-102

 

Share of heirs other than surviving spouse

Any part of the intestate estate not passing to the decedent's surviving spouse pursuant to Section 45-2-102 NMSA 1978, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:

A. to the decedent's descendants by representation;

B. if there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent;

C. if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation; and

D. if there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation, and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

New Mexico Statutes, 45-2-103

 

Requirement that heir survive decedent by one hundred twenty hours

An individual who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of family allowance, personal property allowance and intestate succession, and the decedent's heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state pursuant to Section 45-2-105 NMSA 1978.

New Mexico Statutes, 45-2-104

 

No taker

If there is no taker under the provisions of Chapter 45, Article 2 NMSA 1978, the intestate estate passes to the state.

New Mexico Statutes, 45-2-105

 

Other intestacy statutes

There are additional statutes pertaining to the distribution of intestate property in the State of New Mexico. To view those statutes, please click here.

 

 

[Reference - New Mexico's Intestacy laws]

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If you die without a valid will while residing in the State of New Jersey, you are said to have died "intestate."  In order to determine who will receive your property if you die intestate, the State of New Jersey has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see New Jersey Intestacy Laws | Intestate Succession statutes.

 

 

3B:5-2   Intestate estate.

  a.  Any part of the decedent's estate not effectively disposed of by his will passes by intestate succession to the decedent's heirs as prescribed in N.J.S.3B:5-3 through N.J.S.3B:5-14, except as modified by the decedent's will.
 
  b.  A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share.

 


3B:5-3   Intestate share of decedent's surviving spouse or domestic partner.

Intestate share of decedent's surviving spouse or domestic partner.
 
The intestate share of the surviving spouse or domestic partner is:

a.  The entire intestate estate if:
(1)  No descendant or parent of the decedent survives the decedent; or 

(2)  All of the decedent's surviving descendants are also descendants of the surviving spouse or domestic partner and there is no other descendant of the surviving spouse or domestic partner who survives the decedent;
b.  The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
c.  The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate:
  (1)  If all of the decedent's surviving descendants are also descendants of the surviving spouse or domestic partner and the surviving spouse or domestic partner has one or more surviving descendants who are not descendants of the decedent; or
 
  (2)  If one or more of the decedent's surviving descendants is not a descendant of the surviving spouse or domestic partner. 

 


3B:5-4   Intestate shares of heirs other than surviving spouse or domestic partner.

Any part of the intestate estate not passing to the decedent's surviving spouse or domestic partner under N.J.S.3B:5-3, or the entire intestate estate if there is no surviving spouse or domestic partner, passes in the following order to the individuals designated below who survive the decedent:
a. To the decedent's descendants by representation;

b. If there are no surviving descendants, to the decedent's parents equally if both survive, or to the surviving parent;

c. If there are no surviving descendants or parent, to the descendants of the decedent's parents or either of them by representation;

d. If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent, or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

e. If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the decedent is survived by one or more descendants of grandparents, the descendants take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation.

f. If there are no surviving descendants of grandparents, then the decedent's step-children or their descendants by representation.

 


3B:5-6  Determining representation

a. As used in this section:
(1) "Deceased descendant," "deceased parent," or "deceased grandparent" means a descendant, parent or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent under N.J.S.3B:5-1.

(2) "Surviving descendant" means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under N.J.S.3B:5-1.
b. If, under N.J.S.3B:5-4, a decedent's intestate estate or part thereof passes "by representation" to the decedent's descendants, the estate or part thereof is divided into as many equal shares as there are: (1) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants; and (2) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.

c. If, under section c. or d. of N.J.S.3B:5-4, a decedent's intestate estate or a part thereof passes "by representation" to the descendants of the decedent's deceased parents or either of them or to the descendants of the decedent's deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are: (1) surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants; and (2) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share, and their surviving descendants had predeceased the decedent.

 


3B:5-7. Relatives of the half blood


Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

 

46:30B-37.1 Presumption of abandonment: unclaimed estate assets.

Except as otherwise provided in this section, property held by a fiduciary as defined in N.J.S.3B:1-1 or an assignee under N.J.S.2A:19-1 et seq. and remaining unclaimed for 90 days after the account of that fiduciary or assignee is judicially allowed by the courts or settled informally is presumed abandoned. Unclaimed property held by a fiduciary of an intestate estate payable to the unknown heirs of an intestate decedent shall be presumed abandoned 90 days after publication by the fiduciary of the notice required in N.J.S.3B:5-5

 

 

 

 

[Reference - New Jersey's Intestacy laws]

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If you die without a valid will while residing in the State of New Hampshire, you are said to have died "intestate."  In order to determine who will receive your property if you die intestate, the State of New Hampshire has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see New Hampshire Intestacy Laws | Intestate Succession statutes.

 

 

561:1 Distribution Upon Intestacy.

The real estate and personal estate of every person deceased, not devised or bequeathed, subject to any homestead right, and liable to be sold by license from the court of probate in cases provided by law, and personally remaining in the hands of the administrator on settlement of his or her account, shall descend or be distributed by decree of the probate court:

I. If the deceased is survived by a spouse, the spouse shall receive:

       (a) If there is no surviving issue or parent of the decedent, the entire intestate estate;

       (b) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, and there are no other issue of the surviving spouse who survive the decedent, the first $250,000, plus 1/2 of the balance;

       (c) If there are no surviving issue of the decedent but the decedent is survived by a parent or parents, the first $250,000, plus 3/4 of the balance of the intestate estate;

       (d) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, and the surviving spouse has one or more surviving issue who are not the issue of the decedent, the first $150,000, plus 1/2 of the balance of the intestate estate;

       (e) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, the first $100,000, plus 1/2 of the intestate estate.

II. The part of the intestate estate not passing to the surviving spouse under paragraph I, or the entire intestate estate if there is no surviving spouse, passes as follows:

       (a) To the issue of the decedent equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degree take by representation.

       (b) If there are no surviving issue, to the decedent's parent or parents equally.

       (c) If there are no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother or sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree then those of more remote degree take by representation.

       (d) If there are no surviving issue, parent or issue of a parent but the decedent is survived by one or more grandparents, one half of the estate passes to the paternal grandparents if both survive or to the surviving paternal grandparent if one paternal grandparent is deceased and the other half passes to the maternal grandparents in the same manner; or if only one grandparent survives, such grandparent shall receive the entire estate.

       (e) If there are no surviving issue, parent, issue of a parent, or grandparent but there are issue of the decedent's grandparent who survive, one half of the estate passes to the issue of the paternal grandparent who are not beyond the fourth degree of kinship to the decedent and said issue shall take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation, and the other half passes to the issue of the maternal grandparent who are not beyond the fourth degree of kinship and said issue shall take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; provided, however, that if there are no issue of the decedent's grandparent within the fourth degree of kinship to the decedent on either the paternal or maternal side, the entire estate passes to the issue on the other side who are not beyond the fourth degree of kinship to the decedent and said issue shall take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation.

       (f) No portion of a decedent's intestate estate shall pass to any person who is of the fifth or greater degree of kinship to the decedent.

       (g) If there is no taker under the provisions of this section, the intestate estate passes to the state of New Hampshire.

III. All determinations of survivorship shall be made in accordance with the provisions of RSA 563.

 

561:2 Estate of Unmarried Minor. 

If any person die under age and unmarried his estate, derived by descent or devise from his father or mother, shall descend to his brothers and sisters, or their legal representatives if any, to the exclusion of the other parent.

 

561:3 Representation. –

[Repealed 2003, 47:2, I, eff. Jan. 1, 2004.]
 


561:4 Inheritance of Children Born of Unwed Parents.

I. A child born of unwed parents shall inherit from or through his mother as if born in lawful wedlock. The estate of a person born of unwed parents dying intestate and leaving no issue, nor husband, nor wife shall descend to the mother, and, if the mother is dead, through the line of the mother as if the person so dying were born in lawful wedlock.

II. A child born of unwed parents shall inherit from or through his father as if born in lawful wedlock, under any of the following conditions:

       (a) Intermarriage of the parents after the birth of the child.

       (b) Acknowledgment of paternity or legitimation by the father.

       (c) A court decree adjudges the decedent to be the father before his death.

       (d) Paternity is established after the death of the father by clear and convincing evidence.

       (e) The decedent had adopted the child. 


 

561:5 Children of Unwed Parents; Mother's Estate.

[Repealed 1983, 181:2, eff. June 10, 1983.]

 

561:6 Personal Estate Not Bequeathed.

[Repealed 1971, 179:27, eff. Aug. 10, 1971.]
 


<561:7 Personal Estate Bequeathed.

The personal estate bequeathed by a testator shall be distributed by decree of the judge according to the will. 

 

561:7-a Interim Distributions Authorized.

The personal estate of a person deceased which was not bequeathed or included in a bequest and which remains in the hands of the executor or administrator upon settlement of an account of such fiduciary shall be distributed according to law by decree of the judge. Upon the application of the fiduciary or any interested person, the judge may issue interim orders approving or directing partial distributions or granting other relief at any time during the pendency of administration to effect distributions as expeditiously and efficiently as may be consistent with the best interests of the estate.
 
 

561:8 Escheat, etc. –

[Repealed 1998, 155:10, V, eff. July 8, 1998.]

 

561:9 Payment to State.

If no heir or legatee be ascertained at the expiration of three years from the original grant of administration, the judge shall order the administrator to pay the balance into the state treasury, where it shall be subject to the claims of persons entitled thereto, upon application to the legislature.
 
 

[Reference - New Hampshire's Intestacy laws]

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