Transfer of Property After Death Without a Will in New York

When someone dies in New York without a will, the state’s Estates, Powers and Trusts Law decides who inherits, and the Surrogate’s Court supervises the transfer of property after death without a will in New York through a proceeding called administration. The closest surviving relatives take the estate in a fixed statutory order, and a court-appointed administrator collects the assets, pays creditors, and distributes what remains.¹²

Who Inherits Under New York’s Intestacy Rules

The people entitled to inherit are called distributees. The statute works from the closest relatives outward, and only moves to the next level when no one qualifies above it.¹

Spouse and children survive: the spouse takes the first $50,000 plus half of the remainder; the children split the other half equally.
Spouse, no children: the spouse inherits everything.
Children, no spouse: the children inherit everything in equal shares.
No spouse or children: the decedent’s parents inherit. If neither parent is living, siblings or their descendants take.
No parents or siblings: grandparents or their descendants inherit, with the estate split between the maternal and paternal sides. If only one side has surviving relatives, that side takes everything.
No qualifying relatives at all: the property escheats to New York State.

The reach of the statute is broader than most people expect. It extends down to great-grandchildren of grandparents before the state takes anything, meaning first cousins once removed can inherit if no closer relatives exist.¹

How Shares Are Divided When a Child Has Already Died

If a child of the decedent died before them but left descendants, New York distributes shares “by representation.” Identify the closest generation with at least one living member. Each living person in that generation takes an equal share. The shares that would have gone to deceased members of that generation are pooled and divided equally among the descendants of the next generation.³

An example makes this concrete. A decedent had three children: Alice (alive), Bob (deceased, two children), and Carol (deceased, one child). Alice takes her one-third. The remaining two-thirds are pooled and split equally among all three grandchildren, so each grandchild receives two-ninths. This is different from traditional per stirpes, where Bob’s two children would each get one-sixth and Carol’s single child would take one-third.

Which Assets Actually Pass Through Intestacy

Intestacy rules only govern probate assets: property titled in the decedent’s name alone with no built-in transfer mechanism. That includes real estate held solely by the decedent, individual bank and brokerage accounts, vehicles, and personal belongings.4

Plenty of assets pass outside this system entirely. Life insurance and retirement accounts with a named beneficiary go directly to that person. Property held as joint tenants with right of survivorship transfers automatically to the surviving co-owner. Assets placed in a living trust before death bypass the Surrogate’s Court altogether.

A common trap: if a life insurance policy or retirement account names “my estate” as the beneficiary instead of an individual, those funds get pulled into the probate estate and distributed under the intestacy rules.

Getting Appointed as Administrator

With no will naming an executor, someone has to ask the Surrogate’s Court for authority to act. That person becomes the administrator. New York law sets a strict priority for who gets the appointment:⁵

Surviving spouse
Children
Grandchildren
Parents
Siblings
Other distributees, with preference to whoever is entitled to the largest share

If no family member qualifies or steps forward, the county’s public administrator can be appointed. When multiple people at the same level want to serve, the court decides.

Filing the Petition

The petitioner files a Petition for Letters of Administration in the Surrogate’s Court of the county where the decedent lived, along with a certified death certificate and a copy of the paid funeral bill. All distributees must receive notice. Those not petitioning are usually asked to sign waivers consenting to the appointment. Objections or missing distributees stretch the timeline.²

The Administrator’s Bond

The court usually requires a surety bond before issuing Letters of Administration. The bond protects heirs and creditors from mismanagement. It can be waived or reduced if the administrator is entitled to the entire estate, or if everyone with an interest signs a written consent.⁶ When a surviving spouse is the sole distributee and sole administrator, the bond is almost always waived.

Surrogate’s Court Filing Fees

Filing fees scale with the gross value of the estate passing through intestacy:⁷

Under $10,000: $45
$10,000 to $19,999: $75
$20,000 to $49,999: $215
$50,000 to $99,999: $280
$100,000 to $249,999: $420
$250,000 to $499,999: $625
$500,000 and over: $1,250

If the estate turns out larger than the petitioner first estimated, the court collects an additional fee to make up the difference.

What the Administrator Does

Once Letters of Administration issue, the administrator is the legal representative of the estate. They can access bank accounts, collect debts owed to the decedent, manage or sell real property, pay creditors, file tax returns, and distribute what remains to the distributees.²

Administrators are entitled to a statutory commission on a sliding scale:⁸

First $100,000: 5%
Next $200,000: 4%
Next $700,000: 3%
Next $4,000,000: 2.5%
Above $5,000,000: 2%

On a $500,000 estate, the commission is $21,000. The commission is taxable as ordinary income, which is why family members who are also distributees often waive it: an inheritance is not taxed as income.

Paying Debts Before Heirs Receive Anything

Creditors get paid before distributees. New York law sets a specific order the administrator must follow:⁹

Funeral expenses
Administration expenses such as court fees, attorney fees, and appraisals
Debts with federal or state preference, including unpaid taxes
Property taxes assessed before death
Court judgments entered against the decedent during their lifetime
All remaining debts, including credit cards, medical bills, and personal loans

Creditors have seven months from the issuance of Letters of Administration to present claims. After that, the administrator can distribute assets without personal liability for late claims.¹⁰ Distributing too soon is risky. An administrator who pays out heirs and later cannot cover a valid claim can be personally liable for the shortfall.

The Small Estate Shortcut

When the decedent’s personal property totals $50,000 or less, New York offers a simpler procedure called Voluntary Administration. Real estate does not count toward the $50,000 cap, and it cannot be transferred through this process. If the decedent owned solely-titled real property, a full administration proceeding is required regardless of total value.¹¹

The closest distributee files an Affidavit of Voluntary Administration listing the personal property, its value, and the legal heirs. The court issues certificates for each listed asset, which the Voluntary Administrator presents to banks or other institutions to collect the funds. Many families complete the process without an attorney, and the filing fee is minimal.

Tax Filings the Administrator Must Handle

Dying intestate does not change what the tax authorities expect. The administrator handles all required returns before finalizing distributions.

The Decedent’s Final Income Tax Return

The administrator files a final federal income tax return covering income from January 1 through the date of death. Ordinary filing deadlines apply. The return is marked “DECEASED” across the top with the decedent’s name and date of death.¹² Any unfiled prior-year returns also fall to the administrator. A surviving spouse can file a joint return for the year of death.

Estate Tax

For 2026, the federal estate tax exemption is $15,000,000 per individual, so most estates owe no federal estate tax.¹³ New York’s own estate tax has a much lower basic exclusion of $7,350,000 for 2026.¹⁴ New York also has a cliff: if the taxable estate exceeds the exclusion by more than 5%, the exclusion disappears entirely and the full estate is taxed from the first dollar. For 2026, that cliff sits at $7,717,500.

When a Relative Loses the Right to Inherit

Being listed as a distributee does not guarantee inheritance. New York’s slayer rule treats a person who feloniously and intentionally kills the decedent as having died first, eliminating their share. A criminal conviction is strong evidence, but the Surrogate’s Court can apply the rule based on civil-standard proof even without one. A parent who abandoned a minor child or failed to support them can also lose the right to inherit from that child’s estate.

1
New York State Senate. New York Estates, Powers and Trusts Law 4-1.1 – Descent and Distribution of a Decedent’s Estate
2
New York State Unified Court System. Administration – When a Person Dies with No Will
3
New York State Senate. New York Estates, Powers and Trusts Law 4-1.1 – Descent and Distribution of a Decedent’s Estate>
4
NY Courts. Surrogate’s Court Information
5
New York State Senate. New York Surrogate’s Court Procedure Act 1001 – Order of Priority for Granting Letters of Administration
6
New York State Senate. New York Surrogate’s Court Procedure Act 805
7
NYCOURTS.GOV. Surrogate’s Court Fees
8
New York State Senate. New York Surrogate’s Court Procedure Act 2307 – Commissions of Fiduciaries Other Than Trustees
9
New York State Senate. New York Surrogate’s Court Procedure Act 1811
10
New York State Senate. New York Surrogate’s Court Procedure Act 1802 – Effect of Failure to Present Claim
11
New York State Senate. New York Surrogate’s Court Procedure Act 1301 – Definitions
12
Internal Revenue Service. Filing a Final Federal Tax Return for Someone Who Has Died
13
Internal Revenue Service. What’s New – Estate and Gift Tax
14
Tax.NY.gov. Estate Tax