Who's the Next of Kin in Case of Inheritance? by Brette Sember, J.D.

Who's the Next of Kin in Case of Inheritance?

The "next of kin" concept isn't complicated, but it does vary by state and also determines who inherits if you die without a will.

by Brette Sember, J.D.
updated October 06, 2020 · 2 min read

 

Generally, the decedent's next of kin—closest family members related by blood—are first in line to inherit as heirs, but state laws determine who is considered next of kin and the order in which they inherit.

If you don't have a will, it is especially important to understand what will happen to your estate upon your death. In the rare instance that no next of kin is found, your hard-earned assets may even end up in the state's hands.

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Next of Kin Defined

Your next of kin relatives are your children, parents, and siblings, or other blood relations. Since next of kin describes a blood relative, a spouse doesn't fall into that definition.

Still, if you have a surviving spouse, they are first in line to inherit your estate if you die without a will. Sometimes the spouse may even inherit the entirety of the estate, especially if you also have no surviving children or parents.

Beyond Surviving Spouse and Children

Your next of kin may extend further down your bloodline, particularly if you have no surviving spouse or children. Next, come parents and then siblings. State law varies but, generally, further next of kin include:

  • Grandchildren
  • Grandparents
  • Aunts and uncles
  • Nieces and nephews

The "great" generations also may inherit under some state intestacy laws—great-grandchildren, great-grandparents, and great-aunts and great-uncles. If there are no other surviving heirs, cousins may inherit as well.

Note that if your next of kin is a minor, the probate court generally will appoint a conservator to oversee the management of assets until the children reach the age of majority.

Children adopted legally are considered heirs under next of kin laws, which make no distinction between biological and adopted relations. So if the deceased has an adopted child and a biological child, they are treated exactly the same. If the deceased person was adopted into a family, the adoptive family members are considered next of kin, just as if they were biologically related.

Inheriting Property as Next of Kin

If someone dies without a will, the probate court appoints an administrator to distribute the assets and close out the estate. Usually, this person is next of kin, such as a spouse or child. After receiving a letter of administration (called "letter of testamentary" if there is a will), the administrator pays off the deceased's debts and handles the paperwork to transfer assets according to state intestacy laws.

The next of kin may need a next of kin affidavit, a notarized document that establishes the heirs to estate property. Depending on the jurisdiction, this affidavit may be sufficient to transfer some types of property legally to the heir; real property, however, usually requires further documentation to transfer ownership.

Proving who is next of kin requires proof of identity such as a birth certificate or government-issued photo identification. An affidavit of someone who can swear to your blood relationship with the decedent may also be required.

Overall, to avoid assets from falling into hands you didn't intend—whether it's the state or your own relatives—your best bet is to execute a last will and testament. By doing so, you'll have peace of mind now and save your loved ones bureaucratic hassle and even potential arguments later.

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Brette Sember, J.D.

About the Author

Brette Sember, J.D.

Brette Sember, J.D. practiced law in New York, including divorce, mediation, family law, adoption, probate and estates, … Read more