When a close family member dies without a will, many people find it confusing to determine who the deceased’s next of kin is. Understanding the hierarchy of the next of kin is essential to effectively managing the deceased’s estate.
The next of kin order determines an individual’s rights and responsibilities in the absence of a last will and testament from a deceased person.
Read on to learn more about intestate laws by state that govern who is the next of kin, and special cases that might affect the order of precedence.
What is Next of Kin?
“Next of kin” refers to your closest living relative(s), typically identified by blood, marriage, or legal ties such as adoption.
In legal contexts, knowing which family member is next of kin can be crucial when someone dies intestate (without a will). The state laws of intestate succession determine who is entitled to inherit the deceased’s estate, prioritizing next of kin in a specific order.
What is The Order of Next of Kin?
While state laws vary, the most common next of kin order and priority for inheritance is:
- Spouse (or domestic partner in some states);
- Descendants (children, grandchildren, and any descendant who is a direct offspring);
- Parents;
- Siblings;
- Nieces and nephews;
- Grandparents;
- Aunts and uncles.
So, it could start with your spouse, children (both biological and adopted), and grandchildren (both biological and adopted), and then move on to other close relatives such as parents or siblings.
If you do not have a spouse, children, or surviving parents, the next family members in the order are generally nieces and nephews, grandparents, aunts, and uncles.
In some states, the legal status of relationships, such as those with adopted children, may differ, affecting their rights as next of kin.
It’s important to understand that the next of kin designation also has implications beyond inheritance. For instance, in medical emergencies or critical health decisions, your next of kin may be consulted for consent if you are unable to make decisions yourself or when you don’t have a health care advance directive (which typically includes medical power of attorney and living will). Additionally, the court may appoint a next of kin as the estate executor to handle post-mortem affairs and distribute the estate as indicated by intestacy laws.
Can stepchildren and foster children be considered next of kin?
Unless legally adopted, stepchildren and foster children may not be recognized as direct heirs under many states’ next-of-kin laws. For instance, in some jurisdictions, non-adopted stepchildren only inherit if the stepparent had initiated but not completed an adoption process due to legal barriers.
Rights and Responsibilities of Next of Kin
Inheritance Rights
When you are the next of kin and the deceased has left no will, your primary right is to inherit the estate. This legal framework ensures that the estate is distributed according to a predefined order of relatives, starting with direct offspring and moving outward to more distant relatives if necessary.
Right to Access Information
As the next of kin, you may gain specific rights over the deceased’s information. You are entitled to access medical records and other pertinent data that can aid in managing the deceased’s affairs effectively. This access is granted unless previously opposed by the deceased.
The HIPAA Privacy Rule extends these rights, allowing you to handle the decedent’s health information with certain restrictions to protect privacy.
Responsibility for Administering Estate
Handling the administrative duties of the deceased’s estate is a significant responsibility of the next of kin. This includes filing for probate, where you may be appointed administrator if the court does not contest your position.
You are also responsible for making funeral arrangements in accordance with the deceased’s wishes (if known), informing relevant parties of the decedent’s death, and managing financial obligations such as paying debts and filing estate taxes.
Special Cases
Unmarried Partners
Unmarried partners do not automatically receive inheritance rights under intestate succession laws, which typically prioritize blood relatives and legally recognized relationships.. This means that without a will, a surviving partner may not inherit any part of the deceased’s estate, regardless of the length or commitment of their relationship.
To ensure that a partner inherits your estate, you can establish joint tenancy with rights of survivorship or explicitly include the partner in a will or trust.
No Living Relatives
If there are no known surviving relatives, the responsibility to file the petition may fall to a public administrator or public guardian. These are government officials appointed to manage the estates of deceased individuals with no immediate family or whose family cannot be located.
If no heirs can be found and no one steps forward to claim the estate, the assets of the estate may eventually escheat to the state. This means the state government takes ownership of the assets.
Child Born After Decedent’s Death
Children conceived before but born after the decedent’s death (posthumous children) generally have the same inheritance rights as children born during the decedent’s lifetime.
Half-Blood Relatives
Half-blood relatives (sharing only one parent with the decedent) may have different inheritance rights depending on state laws. Some states treat them the same as full-blood relatives, while others may give them a reduced share.
Slayer Rule
An heir who intentionally caused the death of the decedent (e.g., a murderer) is typically disqualified from inheriting from the victim’s estate.
How Courts Determine Next of Kin
When someone dies without a will, the state’s intestate succession laws guide courts in determining the next of kin and heirs. The court usually appoints a next of kin as the executor to manage the deceased’s estate, ensuring the assets are distributed according to state laws.
To initiate this process, the surviving family members must take the following steps:
Step 1: Submit a Petition
Gather all necessary documents and information to submit a petition for probate. These include:
- The death certificate.
- Names and contact information of the deceased’s next of kin and potential heirs.
- An estimate of the estate’s value, including all assets and liabilities.
- Any existing wills or codicils, even if believed to be invalid.
- The petition for probate form (obtained from the probate court in the county where the deceased lived)
- The petitioner (the person submitting the petition) is usually the estate administrator proposed in the petition.
In cases where the next of kin needs to be established or verified, an affidavit of heirship may be required. This is a legal document used to declare the heirs of the deceased and their relationship to the decedent, often signed by a person familiar with the family history.
Step 2: File with Probate Court
Submit the completed petition and attached documents to the probate court in the county where the deceased resided. You can do this in person at the courthouse; some courts also accept mail or electronic submissions.
Probate courts typically charge a filing fee, which varies by jurisdiction. Check with the court for the exact amount and acceptable methods of payment.
For estates that qualify as “small,” a small estate affidavit can simplify the process. This affidavit allows heirs to bypass the full probate process if the estate’s value falls below a certain threshold set by state law. You must file the affidavit with the probate court; once approved, the court grants the heirs the authority to collect and distribute the estate’s assets.
Step 3: Attend Hearing
After the petition is filed, the court will schedule a hearing.
The petitioner must notify all interested parties, such as heirs and potential creditors, of the probate proceedings. This usually involves mailing notices and publishing a notice in a local newspaper.
The petitioner and other interested parties must attend this hearing. The court will review the petition and any objections from other interested parties.
If the petition is approved, the court will issue Letters of Administration (or Letters Testamentary if there is a valid will), officially appointing the administrator or executor.
Step 4: Receive Letters of Administration
Once the court approves the petition and any required bonds are posted, the administrator will receive Letters of Administration (or Letters Testamentary), granting them legal authority to manage the estate.
► READ MORE: 9 End-of-Life Documents Everyone Needs
Conclusion
Without a valid will, the estate is distributed to heirs based on their legal relationship to the deceased, which might not reflect the decedent’s wishes. This can lead to potential disputes among family members and might result in unintended parties inheriting the estate. Establishing a will can prevent such outcomes, ensuring the decedent’s assets are distributed as they would have preferred.
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