Trusts and Estates

Don't Let the Government Inherit Your Property

When a person dies and doesn't have a will and has no heirs, any remaining property goes into escheat. This word originated in the Middle Ages when land reverted to the feudal lord when one of his tenants died without a will. Instead of going to a feudal lord, it now reverts back to the government.

The term escheat doesn't always refer to "land." It can also refer to other proceeds, such as money. Most states have abandoned property laws that can be complex. New York state has the most confusing laws concerning escheat.

The Legal Effect of Escheat

Once property goes to a state, there's no difference between the state's ownership of the property and the beneficiary's ownership. Property is still subject to liens and claims in existence before the escheat proceedings. For example, if you had an easement to cross your neighbor's property, and the neighbor's property was turned over to the state, your rights under the easement would most likely remain in force.

Escheat Traditionally

Before states enacted laws to specifically address escheat situations, land immediately reverted to the state government after the owner died without a will and no heirs. This type of escheat is called "true escheat." In New York, for example, the current laws require certain proceedings to take place before property is turned over to the state government. In addition, the property of non-citizens who died without a will would escheat to the state government immediately before laws addressing escheat were adopted by state legislatures. Most states now have laws similar to those of New York, which require some sort of court proceedings prior to the distribution of property to the state by escheat.

Escheat in New York

Sometimes people die without a will. Before a dead person's property passes to the state under the law of escheat, a court must determine that there are no close relatives or heirs. A close relative is defined in New York as a cousin-once removed, which is a first-cousin's child, or any relative who has a closer relationship to the dead person, a sibling, for example. Also, the rules of escheat apply to personal property and real estate.

Questions For Your Attorney

  • What do I do if my relative's property has escheated to the state? Can I bring a lawsuit to get the property?
  • Can I inherit from a relative even though we were not close relatives (ex. we were second cousins, or blood related relatives, etc)? Or will my relatives property escheat to the state?
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