My daughter recently passed away without a will.
If a person dies without leaving a Last Will and Testament in NY state, it is said the person died intestate.
When a person dies intestate, that person's property is distributed according to NY law.
In New York, that law is found in EPTL 4-1.1
Descent and distribution of a decedent's estate .
Who gets what depends on who the living relatives are and their relationship to the Decedent, the person who died.
The family members who are entitled to a share of the Decedent's estate when there is no will are called "distributees" in NY state.
If the Decedent has a spouse without children the spouse inherits everything.
If the Decedent has children without a living spouse, the children inherit everything!!!
About The Decedent's Children
For children to inherit from their parent(s), New York State requires that there is legal parent-child relationship.
In most cases this is not an issue but it's not always clear.
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 parent.
Who Can File An Estate Proceeding???
If there is no Will, then there is a rule for who can file for administration or a small estate.
In general, 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.
If the Decedent didn't have a living husband or wife, then the Decedent's children have equal rights to each other.
If the relative with the prior right does not want to administer the estate, then they can sign a renunciation and waiver.
In the same way, if relatives have equal rights (such as a Decedent's son and daughter) in an administration proceeding, then the Decedent's children sign waivers.
This does not mean that they are giving up their share of the Decedent's estate.