What Happens to a House If You Die Without a Will in New York?

 What Happens to a House if You Die Without a Will in NY?

---

Dying Without a Will: What “Intestate” Really Means

If a New York homeowner dies without a Last Will and Testament, they are said to have died intestate. Their house – along with most other assets – will be distributed according to New York’s intestacy statute, EPTL § 4-1.1, rather than according to the person’s wishes. 

These laws create a default family tree of who inherits first, second, third, and so on. Real estate, like a house, is generally treated the same as other probate assets.

---

Step One of What Happens to a House If You Die Without a Will – Does the House Even Go Through “Estate”?

Before asking who gets the house, you need to know how it was owned:

1. Sole ownership in the decedent’s name only
   
   • Example: “John Smith” is the only name on the deed.
     
   • Result: John’s interest in the house is part of his probate estate and passes under intestacy.
     
2. Joint tenants with right of survivorship (JTWROS)
   
   • Example: “John Smith and Mary Smith, as joint tenants with right of survivorship.”
     
   • Result: John’s share passes automatically to Mary by operation of law the moment he dies, outside of intestacy.
     
3. Tenants by the entirety (married couple)
   
   • Common for spouses in New York.
     
   • Result: If one spouse dies, the surviving spouse automatically owns 100% of the property.
     
4. Tenants in common
   
   • Each person owns a share.
     
   • The deceased owner’s share is part of their probate estate and is distributed under intestacy.
     

This post focuses on houses owned solely in the decedent’s name or as a tenant in common, because that’s where intestacy becomes critical.

---

Who Inherits the House Under New York Intestacy Law?

New York’s intestate succession rules are set out in EPTL § 4-1.1. 

In simplified terms:

• Spouse and children:
  
  • The surviving spouse receives the first $50,000 plus one-half of the remaining estate.
    
  • The children share the other half equally.
    
• Spouse but no children:
  
  • The spouse inherits 100% of the probate estate (including the house).
    
• Children but no spouse:
  
  • The children inherit 100%, in equal shares, by representation.
    
• No spouse, no children:
  
  • To parents.
    
  • If no parents, to siblings (and children of deceased siblings), then further down the family tree. If there are truly no relatives, the estate can ultimately escheat to the State of New York.
    

Because the house is usually the largest asset in the estate, how this formula plays out can dictate who ends up on the deed.

---

Scenarios of What Happens to a House If You Die Without a Will: How the House Is Divided

1. Married with children

A homeowner in Queens dies without a will. The title to the house is in his name alone. He leaves a spouse and two adult children.

• The house is part of his probate estate.
  
• The spouse is entitled to:
  
  • First $50,000 of the probate estate, plus
    
  • Half of what’s left.
    
• The children split the remaining half.
  

Practically, this can leave the spouse and children as co-owners of the house, each with a fractional interest – which can create tension about whether to sell, keep, or refinance the property.

2. Unmarried, with children

A Brooklyn homeowner dies unmarried, survived by three children.

• Each child inherits one-third of the house as tenants in common.
  
• All three generally must cooperate to sell, refinance, or manage the property, unless one files a partition action.
  

3. No spouse, no children

A Manhattan condo owner dies with no spouse or children, but both parents are alive.

• The parents inherit the condo (typically 50/50).
  
• If the parents are deceased, then the condo passes to siblings (or their issue).
  

---

What Happens to a House If You Die Without a Will – Does the House Still Need to Go Through Probate?

Yes, in most cases a house owned solely in the decedent’s name will pass through a court-supervised estate proceeding.

In New York, when someone dies intestate:

1. A relative petitions the Surrogate’s Court in the county where the decedent lived, asking to be appointed as administrator (rather than “executor,” which is used when there is a will).
   
2. Once appointed, the administrator:
   
   • Identifies and secures estate assets (including the house),
     
   • Pays debts, taxes, and expenses,
     
   • Then distributes what’s left according to EPTL 4-1.1.
     
3. Only after that can the administrator deed the house (or sale proceeds) to the lawful heirs.
   

If the heirs want or need to sell the house, the administrator typically signs the contract of sale and deed on behalf of the estate, then distributes the net proceeds according to the intestacy shares.

---

What Happens to a House If You Die Without a Will And One Heir Lives in the House?

A common, difficult situation:

• One child still lives in the house.
  
• The others live elsewhere and want their share in cash.
  

Legally, all heirs who own an interest are co-owners, even if only one person is living in the property. Options may include:

• The occupying heir refinances and buys out the others.
  
• The parties agree to sell the house and split the proceeds.
  
• If they cannot agree, any co-owner can start a partition action asking the court to force a sale and divide the net proceeds based on each person’s percentage interest.
  

These disputes are much more likely when there was no will clearly stating who should receive the house (or allowing one child to stay with specific conditions).

---

What About Mortgages, Taxes, and Liens?

Intestacy doesn’t wipe out the obligations attached to the property:

• Mortgages: The lender can still foreclose if payments stop. The heirs may:
  
  • Continue paying the existing mortgage;
    
  • Refinance the loan (if they qualify); or
    
  • Sell the house and pay off the mortgage from the closing.
    
• Property taxes: Unpaid taxes can lead to tax liens or even a tax sale.
  
• Judgment liens or other encumbrances: These usually must be resolved in the estate or at the time of sale.
  

The administrator is responsible for dealing with these debts before distributing net value to heirs.

---

Special Issues Related To What Happens to a House If You Die Without a Will: Second Marriages, Non-Marital Children, and Estranged Relatives

New York’s intestacy law doesn’t ask who “deserves” to inherit – it follows the statute. That can lead to surprising (and upsetting) results in blended or estranged families:

• Second marriage, children from prior relationship
  The surviving spouse still gets the first $50,000 and half the rest; the decedent’s children from a prior relationship share the other half – including any interest in the home.
  
• Non-marital children
  Children born outside of marriage can inherit once legal parentage is established, and New York has specific rules about proof.
  
• Estranged family members
  Even an estranged child, sibling, or parent may inherit under the statute, while a long-term partner or step-child may receive nothing.
  

These complexities are why individualized legal advice is so important when real estate is involved.

---

Can the State Take the House?

The State of New York only becomes the owner of the property if there are no heirs at all in the statutory family tree – which is rare. This is called escheat. 

Far more often, the issue is not that there are no heirs, but that the heirs:

• Don’t know what to do,
  
• Don’t agree with each other, or
  
• Don’t act quickly enough to protect the property.
  

---

How RK Law Helps Families When There’s No Will

Handling a house after a death is stressful enough; doing it without a will and with family conflict can feel overwhelming. An experienced New York trusts and estates attorney can:

• Assist with the process to determine who legally owns the house under EPTL 4-1.1.
  
• Petition the Surrogate’s Court for appointment of an administrator.
  
• Guide the sale or transfer of the property.
  
• Resolve disputes among heirs and, when necessary, pursue or defend partition or accounting proceedings.
  
• Coordinate with real estate professionals, tax advisors, and lenders.
  

---

Preventing Problems: Why Every Homeowner Needs an Estate Plan

The best way to control what happens to your house is to have a proper estate plan:

• A well-drafted Last Will and Testament, and sometimes
  
• A revocable trust or other planning tools, depending on your family and asset structure.
  

With a plan, you decide:

• Who receives your home,
  
• Whether a spouse or child can live there for life,
  
• How to protect vulnerable or minor beneficiaries, and
  
• How to minimize conflict and court intervention.
  

---

FAQs on What Happens to a House If You Die Without a Will

---

Talk to a New York Estate Attorney About Your Next Steps to Figure Out What Happens to a House If You Die Without a Will

Whether you’ve just lost a loved one who owned a home without a will, or you’re a homeowner who wants to avoid these issues for your own family, RK Law can help.

Contact us to schedule a consultation and get clear, practical guidance on What Happens to a House If You Die Without a Will in New York.

---

For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:

Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com

Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
Visit Regina on LinkedIn
Visit Regina on Facebook

This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.