Detailed Answer — How children inherit when there is no will (intestate succession) under New Jersey law
When someone dies without a valid will (intestate), New Jersey law sets rules that determine who inherits and in what order. These rules treat children and their descendants as primary heirs. Below is a clear explanation of how succession among children works, who counts as a child, what happens if a child dies before the decedent, and how shares are divided.
Who counts as a “child” for intestate succession?
- Biological children inherit.
- Children legally adopted by the decedent inherit as if they were biological children.
- Stepchildren generally do not inherit unless they were legally adopted.
- Children born after the decedent’s death (posthumous children) may inherit if the child was conceived before the death and the law’s requirements for survivorship are met.
- Children whose paternity was not established may need formal paternity proof to inherit (court order or other legal proof).
Basic rule for division among children
If the decedent is survived only by children (no spouse and no surviving parents entitled under statute), the estate is divided equally among the surviving children. For example:
- If there are three surviving children, each receives one-third.
- If one of those children died before the decedent but left two children (the decedent’s grandchildren), those grandchildren typically take the predeceased child’s share by representation (see below).
What happens when a child predeceases the parent — representation (per stirpes)
New Jersey law allows the descendants of a predeceased child (for example, the decedent’s grandchildren) to step into the place of their parent and receive that parent’s share. In everyday terms, that means the predeceased child’s share is divided equally among his or her own descendants.
Example 1 — representation (simple): Parent dies leaving two surviving children (A and B) and one predeceased child (C) who left two children (grandchildren G1 and G2). The estate is divided into three equal shares (one share for A, one for B, one share to replace C). That third share is split between G1 and G2, so each grandchild gets half of C’s share (one-sixth of the estate).
Example 2 — multiple generations: If a predeceased child left no descendants but a predeceased grandchild left great-grandchildren, those great‑grandchildren inherit by representation in that grandchild’s place. Representation follows the bloodline down the generations.
Surviving spouse and children
If the decedent is survived by both a spouse and children, New Jersey’s intestacy rules determine how the estate is split between them. The exact split depends on the circumstances (for example, whether all children are common to the surviving spouse). Because these rules can be fact‑specific, consult the statutory rules or an attorney. See general information from the New Jersey courts on intestacy and consult the New Jersey statutes governing intestate succession (Title 3B) for the precise rules (see links below).
Priority to administer the estate (appointment of administrator)
When there is no executor named in a will, the court appoints an administrator. Priority for appointment generally favors the surviving spouse first, then adult children, then other next of kin. Children often have standing to serve as administrator if they wish. For precise appointment priority and procedural rules, consult the New Jersey probate statutes and local court rules.
Key New Jersey statutory references and resources
- New Jersey statutes on administration and intestate succession (Title 3B). See the New Jersey Legislature’s statutes pages for Title 3B: https://www.njleg.state.nj.us/ (search Title 3B, especially the sections under intestate succession and representation).
- Practical explanations and forms from the New Jersey Courts on wills and intestacy: https://www.njcourts.gov/ (search the Self‑Help/Wills or Probate sections for intestate succession guidance).
When representation does NOT apply or special situations
- Stepchildren and foster children do not inherit by intestacy unless legally adopted.
- Children disinherited by a valid will are addressed by the will, but if there is no will, the statutory order controls.
- Claims by putative heirs (for example, someone asserting paternity) may require a court action to establish rights before distribution.
Practical examples (quick reference)
- Only surviving children, no spouse: children split estate equally.
- One child predeceased but had children (grandchildren): grandchildren split the deceased child’s share.
- All children predeceased but grandchildren survive: grandchildren inherit, divided by representation across the deceased children’s lines.
Helpful Hints
- Collect birth, adoption, and death certificates. These prove relationships for inheritance and administration.
- Gather estate documents: bank statements, deeds, titles, account lists, and insurance policies.
- If paternity or adoption is in question, seek legal steps to establish the relationship before probate moves forward.
- If a family member wants to be administrator, they can file for appointment in Surrogate’s Court (county level) — the court will follow statutory priority.
- Consider mediation if family members disagree — mediation can avoid costly litigation and preserve family relationships.
- Small‑estate procedures may be available to simplify distribution. Check the New Jersey statutes and Surrogate’s Court rules or ask an attorney about summary procedures.
- Consult an attorney early if there are blended families, contested paternity, or potential creditor claims — these issues complicate intestacy distributions.
Disclaimer: This article explains general principles of New Jersey intestate succession and estate administration. It is educational only and not legal advice. For advice about a specific situation, consult a licensed attorney in New Jersey or contact the county Surrogate’s Court.