Legal Question in Wills and Trusts in New York

First, if the house is in both the husband and wife's name, and it says "his wife", it is owned as tenants by the entirety and passes outside the will. The wife only needs to file a new deed for the house to be in her name alone.

For any assets that is solely in the decedent's name, under NY Intestacy law the estate is divided as follows: "fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation." NY EPTL 4-1.1. Simply put, the spouse receives $50,000 plus 1/2 of the estate. The children receive the remainder equally divided.

Mike.

If the house was held jointly by the husband and wife, it likely passes to the surviving spouse by operation of law and not through the estate. Assets that were in the decedent's name alone would be divided by the surviving spouse and children as follows: The first $50,000 plus one-half of the estate to the spouse and the remainder divided equally by the children.