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Intestate Succession: Who Is Next of Kin When There’s No Will?

One of the obvious challenges of managing the estate of someone who didn’t leave behind a will is figuring out who is eligible to receive their assets and property. When you write a will, you are able to designate who gets with what, which greatly simplifies the process. Without one, however, it largely comes down to the local courts.

One big factor in all of this is the term “next of kin.” In many cases, when someone dies without a will, their “next of kin” will be the ones who will take priority when it comes to handing down someone’s property. But who exactly qualifies as “next of kin” in the first place and are they always first in line? Read on and we’ll explain.

What Does “Next of Kin” Mean?

The term “next of kin” typically refers to the person or people who are most closely related to someone at the time of their death. When someone dies with a last will and testament, specific people are typically named by the deceased to receive their various assets. However, when the deceased fails to leave a will, the law has to identify their “next of kin” for the purposes of distributing their property.

Who Is Named “Next of Kin” When Someone Dies Without a Will?

When someone dies without a will, they are said to have died “intestate.” When you die intestate, your property passes to your heirs through “intestacy” or by “intestate succession.” In the context of intestate succession, anyone who has a legal right to inherit your property when you die is called your legal “heirs.” To be a legal heir, you must be alive at the time of the decedent’s death and be related to the decedent by blood, marriage, or adoption.

Anyone who is a legal heir has the right to inherit from you if you die without a will. Of course, this does not guarantee that they will inherit your property: it simply means that they have a legal right to do so if they qualify under the state’s intestate distribution setup. One’s legal heirs are often given priority based on the “class” of the heir they belong to, which is determined by their relationship with the deceased.

The most common classes of legal heirs (in roughly the order they are prioritized) include:

  • Spouse
  • Children
  • Parents
  • Siblings
  • Grandchildren
  • Grandparents
  • Aunts and uncles
  • Nieces and nephews
  • Great-Grandchildren
  • Great-Grandparents
  • Great aunts and uncles
  • First cousins
  • Grand-nieces and nephews

As such, if someone dies intestate and they are survived by their spouse, then they would have the highest priority among the deceased’s heirs. Regardless of who they are, whichever class of heirs is the first class in the list of prioritized classes to inherit property (other than your spouse) is the class that is defined as your “next of kin.” Your spouse never qualifies as your “next of kin” because by definition, your “next of kin” must be related by blood.

This means that to qualify as a “next of kin,” one must be related to the deceased by blood and belong to the same class of heirs. This also means that a “next of kin” could be a single person or multiple people (you might have a single living parent or seven siblings, for example). Being the “next of kin” is important, not only because they are typically the highest priority among one’s heirs aside from their spouse, but the “next of kin” is typically whoever is legally responsible for making decisions for someone if they died without indicating a preference for a funeral or burial arrangements.

Proving You’re “Next of Kin”

In the context of intestacy, someone needs to actually prove that they are the next of kin before any property is handed over. To do this, you must go to the probate court and present them with documents that verify your relationship with the descendent. This can include:

  • A government-issued form of identification
  • A birth certificate (specifically to identify parents and prove you’re the child of the deceased)
  • A sworn affidavit from someone who knows you and your relationship to the decedent

From there, it will be the court’s decision as to who officially qualifies as “next of kin.” This process can take a while though, especially if there are any complications regarding one’s relationship to the deceased. Ultimately, this is all the more reason why one should avoid these types of issues and simply leave a will behind.

About the author

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Founder/Attorney, CCSK Law
I create customized solutions for families to address their planning needs.
I provide plans clients understand. Also, they make sure they know when to use them, and do so affordably. I love the opportunity to break through the legal jargon to clarify issues. We find success when we work through a person’s situation and put the law to work for them.

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