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.

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by Siege Media, contributor to LegalZoom
updated May 11, 2023 ·  6min read

Writing a will and naming beneficiaries are best practices that give you control over your estate. If you don't have a will, however, it's essential to understand what happens to your estate. Generally, the decedent's next of kin, or closest family member related by blood, is first in line to inherit property.

While the concept of next of kin sounds simple, state laws determine who can act as next of kin and the order in which they become heirs. In the rare instance that a next of kin cannot be found, assets may end up in the state's hands.grandmother-daughter-two-grandson

In this guide, we'll explore the meaning of next of kin and its implications on estate plans.

What is next of kin?

Next of kin is a legal term referring to a deceased person's closest living relative. Next of kin will only come into play if someone passes away without a will—this legal process is known as intestate succession. If someone dies without having any named beneficiaries, the next of kin gets priority when receiving the inheritance from an estate.

While adopted children and spouses aren't blood relatives, many states consider them next of kin. But the exact criteria for next of kin varies by jurisdiction and local policy.

How is next of kin determined?

Your next of kin is often the closest living relative. The order of closest relative generally goes:

  • Spouse
  • Adopted and biological children
  • Parents
  • Siblings
  • Other blood relations

Proving who is next of kin also requires proof of identity, such as a birth certificate or government-issued photo ID. You may also need an affidavit from someone who can swear to the blood relationship with the decedent.

Next of kin order

If you have a surviving spouse, they are often first in line to inherit your estate if you die without a will. Sometimes the spouse may inherit the entirety of the estate, especially if you have no surviving children or parents. In other cases, your children, surviving parents, and siblings have the first claim to next of kin.

Beyond surviving spouse and children

Your next of kin may extend further down your bloodline if you have no surviving spouse or children. State law varies, but these next of kin generally include:

  • Grandchildren
  • Grandparents
  • Aunts and uncles
  • Nieces and nephews
  • Cousins, if there are no other surviving heirs
  • The "great" generations may also inherit under some state intestacy laws—great-grandchildren, great-grandparents, great-aunts, and great-uncles

What happens if your next of kin is a minor?

If your next of kin is a minor, a probate court will appoint a conservator to oversee the management of assets. Once the child reaches the age of majority, your assets will pass down to them.

Why does next of kin matter?

Next of kin status establishes inheritance rights when someone dies without an estate plan. While wills can simplify estate management, not everyone has a will in place. In these situations, the next of kin has rights and responsibilities involving the estate.

Note: Establishing who is next of kin becomes complicated when multiple children or siblings qualify. In these cases, candidates can volunteer if they accept the rights and responsibilities listed below.

Next of kin rights

The rights afforded to the next of kin include:

  • Funeral arrangements: The next of kin will often have the final say in funeral decisions for the deceased.
  • Medical decisions: If someone is incapacitated and left no advance medical directives, the next of kin can decide their treatment.
  • Obtaining a letter of administration (LOA): The next of kin can obtain an LOA to act as the administrator of an estate and control its assets.

Next of kin responsibilities

In exchange for the above rights, the next of kin is responsible for:

  • Probate filing: The next of kin will initiate the probate process. From here, they can hire an attorney.
  • Acting as a point of contact: The next of kin will often respond to legal, medical, and personal questions about the deceased.
  • Tallying assets and debts: The next of kin needs to research the decedent's finances, debts, and valuable assets.

Inheriting property as next of kin

An heir may need a next of kin affidavit to get an inheritance. This notarized document establishes the heir's claim to estate property. Depending on the jurisdiction, this affidavit may be sufficient to legally transfer some types of property to the heir.

Real property usually requires further documentation to transfer ownership. This may include a copy of the deceased's death certificate, a notarized deed, and probate documents. Real property consists of:

  • Land owned
  • Any buildings on the property
  • Any plants on the land
  • Roads, sewers, fences, and other manmade structures

Will the next of kin go through probate court?

Whether or not someone dies with a will, their assets usually have to go through probate court. While some states make exceptions for small estates, large ones call for a probate court to appoint an administrator who distributes the assets and closes 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, if there are any, and handles the paperwork to transfer assets according to state intestacy laws.

Probate vs. nonprobate assets

Not every asset has to go through court. Common nonprobate assets include:

  • Assets placed into a trust
  • Insurance payouts
  • Retirement savings
  • Certain bank accounts with beneficiaries

These assets must almost always go through probate court:

  • Personal collections and possessions like clothing or jewelry
  • Titled assets in the deceased's name
  • Real estate
  • Vehicles

FAQs about next of kin

We've answered some common FAQs about the complete next of kin meaning or establishing who is next of kin.

What does next of kin mean for adopted children vs. blood relatives?

Children adopted legally count as heirs under next of kin laws. These policies make no distinction between biological and adopted relations. So, if the deceased has an adopted and biological child, the state treats them the same.

The same legal principle works in reverse. If the deceased person was adopted into a family, the adoptive family members could act as the next of kin. In both cases, legal adoption stands at the same level as biological relation.

Can a friend or unmarried partner be your next of kin?

Unmarried partners and friends aren't considered next of kin. If you want them to receive your assets after death, name them as a beneficiary in your will or estate plan.

What is the difference between next of kin vs. beneficiaries?

Your next of kin are your closest surviving relatives, but a beneficiary is anyone named to receive something in estate planning documents. Keep in mind:

  • When writing a will, you can name beneficiaries at your discretion.
  • Conversely, you don't have a say over your next of kin.

Will the next of kin inherit debts?

Family members aren't legally obligated to pay debts a deceased individual owes. Even with married couples, a surviving spouse doesn't have to pay unless it's a shared debt in their name.

Money that a deceased individual owes comes directly from their estate. The remaining balance typically goes unpaid if an estate can't cover the total debt.

Can you refuse to be next of kin?

Anyone can refuse to act as a deceased relative's next of kin. In this case, the role passes on to the next candidate in line. The state may claim the deceased's property if no one accepts the position.

Estate planning made simple for your next of kin

While next of kin is a straightforward concept, your best bet is to execute a last will and testament to have a say in where your assets go.

With the proper estate documents, you'll have peace of mind now and save your loved ones bureaucratic hassle and potential disputes. LegalZoom's experts give you the forms and information you need to execute a complete estate plan.

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About the Author

Siege Media, contributor to LegalZoom

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This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.