Estate Law Questions? Ask an Estate Lawyer.
How the estate would be divided will be set forth by the state's intestacy statutes. You can find this information at: http://www.mystatewill.com/statutes/ny_law.htm. Essentially, first wife and children and then other family members. To start probate you would need to file an Administration Petition in the Surrogate's Court in the county in which the decedent lived at the time of his death. An administrator will then need to be appointed.
theres only two children in the family no husbsnd .and one is giving all to the other.
If there are any probate assets in the estate, then probate will need to be opened. The one child will need to sign a discalimer giving everything to the other - but this is very common.