What Happens if You Die Without a NY Last Will & Testament

Less than half of U.S. adults, 46%, have a Will that describes how they would like their money and estate to be handled after their death, according to Gallup’s polling.  Americans aged 65 and older are the most likely subgroup to have a Will, with just over three-quarters saying they have one. Each younger age group is significantly less likely to have a Will than the previous one, including just 20% of adults under age 30.Additionally, upper-income Americans are much more likely than lower-income Americans to report having a will. There are also large differences by education and race, with greater proportions of college graduates and White Americans than college nongraduates and non-White Americans saying they have a will.

Percentage of Americans Having a Will, by Subgroup

Do you have a will that describes how you would like your money and estate to be handled after your death?

% Yes, have a will
U.S. adults 46
65+ years old 76
50-64 years old 53
30-49 years old 36
18-29 years old 20
Annual household income
$100,000 or more 61
$40,000-$99,999 49
Under $40,000 30
College graduate 57
Not college graduate 40
White adults 55
Nonwhite adults 28



A person who dies without  a Last Will and Testament dies “intestate.” Property of a person who dies intestate is distributed according to EPTL 4-1.1. Who inherits depends on who the living relatives are and their relationship to the person who died (the “Decedent”). The family members who are entitled to a share of the Decedent’s estate when there is no will are called “distributees”.


If the Decedent has surviving: Distributees who inherit are:
Spouse and no children Spouse inherits everything
Children* but no spouse Children inherit everything
Spouse and children* Spouse inherits the first $50,000 plus half of the balance. The children* inherit everything else.
Parents but no spouse and no children* Parents inherit everything
Siblings (brothers or sisters) but no spouse, children*, or parents Siblings inherit everything
* If a child dies before the Decedent and had children of their own, then the Decedent would have grandchildren. Those grandchildren would step into the Decedent’s child’s place and inherit in place of the child.


Who are considered to be Decedent’s children?

  • Adopted children will inherit just like a biological child.
  • Foster children and stepchildren will not inherit unless they were legally adopted.
  • Children born after the Decedent dies will inherit.
  • Children born outside of marriage, also called non-marital child, will inherit from a male Decedent if paternity is established
  • Grandchildren will inherit only if their parent (the Decedent’s child) dies before the Decedent died.

If the Decedent has no family at all, the estate passes to New York State.


Who Can File An Estate Proceeding?

If there is a Will, the Executor named in the Will files for probate or a small estate in the Surrogate’s Court n the county where the Decedent had their primary residence. If there is no Will, the “closest distributee” can file for administration or small estate. This means that the Decedent’s husband or wife has a prior right over the Decedent’s children to file. But if the Decedent didn’t have a living husband or wife, the Decedent’s children have equal rights to file. A relative with the prior right who does not wish to administer the estate can sign a renunciation and waiver. If relatives have equal rights (such as a Decedent’s son and daughter) in an administration proceeding, the Decedent’s children sign waivers. This does not mean that they are giving up their share of the Decedent’s estate.

To have your will prepared by experienced Rochester estate planning attorneys Friedman & Ranzenhofer, PC, complete the Will Information Sheet or call 585-484-7432.