- Definition of Intestacy
- When Intestacy Rules Apply
- Source of Intestacy Rules
- Intestacy Distribution Rules
- Intestacy Rights
- Disqualification from Intestacy
- What Is the Problem with Intestacy Laws?
- Courts Favor Testacy
Definition of Intestacy
Intestacy means dying without a will.
When Intestacy Rules Apply
The laws of intestacy govern when someone dies owning assets and does not dispose of them in a will, trust, or beneficiary designation.
Some people think that the laws of intestacy govern when someone dies without a will. This statement is incorrect as a generalization. It may or may not be true depending on the particular facts. For example, someone can make a complete disposition of assets through a revocable trust or through beneficiary designations. Further, even if someone dies with a will, partial intestacy is possible if the testator does not completely dispose of the residuary. See, e.g., In re Winburn’s Will, 265 N.Y. 366 (1934).
The analysis of whether intestacy rules apply is made for each asset that the decedent owned.
|Scenario||Operation of law applies to asset?||Decedent has will?||Will disposes of asset?||Will admitted to probate?||Intestacy rules apply?|
Intestacy rules apply in three of the five scenarios:
- Scenario 5: Intestate Decedent – Someone dies without a will (i.e., dies “intestate”) and the assets do not pass under operation of law.
- Example 1 – Facts: D’s sole asset is a retirement account. D dies without a will. D completed the beneficiary designation for the retirement account. Result: Even though D dies intestate, the intestacy rules would not apply because the retirement account passes under operation of law pursuant to the beneficiary designation.
- Example 2 – Facts: A’s sole asset is a retirement account. A did not complete the beneficiary designation. Result: A’s retirement account passes under the rules of intestacy.
- Example 3 – Facts: H and W are married and own a house together. The deed says that H and W own the house “as husband and wife.” H dies without a will. Result: The rules of intestacy do not apply to the house. W gets the house under operation of law because H and W owned the house as tenants by the entirety.
- Example 4 – Facts: H and W are married and own a house together. The deed does not mention anything other than their names (i.e., it does not say that they own the house as “tenants by the entirety” or as “husband and wife”). H dies without a will. Result: The rules of intestacy apply.
- Scenario 4: Partial Intestacy – A decedent dies with a will, but the will makes does not dispose of an asset that does not pass under operation of law.
- Scenario 3: Someone dies with a will, but the will is denied probate. A will can be denied probate if:
- The will was not formed correctly.
- The proposed will was successfully contested by heirs.
Someone can die without a will but avoid having intestacy rules apply because the assets are disposed of under operation of law.
Source of Intestacy Rules
New York’s intestacy laws are found in EPTL Article 4, Part 1, Sections 1 through 6.
- Article 4 Descent and Distribution of an Intestate Estate
- Part 1 Rules Governing Intestate Succession
- EPTL 4-1.1 Descent and distribution of a decedent’s estate
- EPTL 4-1.2 Inheritance by non-marital children
- EPTL 4-1.3 Inheritance by children conceived after the death of a genetic parent
- EPTL 4-1.4 Disqualification of parent to take intestate share
- EPTL 4-1.5 Other disqualifications
- EPTL 4-1.6 Disqualification of joint tenant in certain instances
These rules can be grouped into three categories: Intestacy distribution rules, intestacy rights, and disqualification from intestacy.
Intestacy Distribution Rules
Disqualification from Intestacy
What Is the Problem with Intestacy Laws?
There is nothing inherently wrong with intestacy laws. But they can be detrimental when the default distribution scheme in these laws does not match what someone wants. For example, someone might want to donate assets to a charity, but the default rules do not make charitable distributions. Similarly, a parent with a spendthrift child might want to transfer assets in trust to benefit a child, instead of the outright transfer per the default rules.
Courts Favor Testacy
When someone dies with a will that is ambiguous, courts use a presumption that the will was written to avoid intestacy.