Who's the Next of Kin in Case of Inheritance?
[by Brette Sember, Esq., August 2017
When someone dies without a will, their estate and assets are inherited by their next of kin, according to state laws.
Dying Without a Will
If you die without having created a will (this is called dying intestate), your assets are distributed to your next of kin. The next of kin definition is those people who are your closest family members, and each state has a law describing exactly who they are.
If you have a will when you die, your assets go to the people you name in the will. The people named in your will are called beneficiaries. These beneficiaries do not have to be family members and can be anyone you select. If you do not make a will, though, your assets are given to your close family members, whether that is something you would have wanted or not.
Who Are Your Next of Kin?
Each state has intestate inheritance laws specifying the legal next of kin when you die. Your state's law lists exactly who will get an inheritance from you when you die without a will. The next of kin order will usually pass your assets to your primary next of kin: spouse and any children. The assets are normally divided among them with the spouse getting the largest portion. If you have no children, your spouse gets it all. If you have no spouse, your children inherit it all.
If you don't have a spouse or children, then your parents or grandparents would be next in line to inherit from you. Siblings, then nieces and nephews, aunts and uncles, and cousins are further down the line if there are no closer family members.
Note that the next of kin laws do not make any distinction between biological relations and adoptive relations. So, if the deceased has an adoptive child and a biological child, they are treated exactly the same. If the deceased person was adopted into a family, the members of the adoptive family are considered to be next of kin, just as if they were biologically related.
In the rare case where no next of kin can be found at all, the assets are taken by the state.
What Happens When Someone Dies Without a Will
You may be wondering what to do when someone dies without a will.
After the person has died, in order to have their assets passed to their next of kin, an administrator or personal representative must be appointed by the court. Usually this person is someone who is next of kin, such as a spouse or child. The administrator takes on the job of paying off the deceased's debts with the remaining assets, locating the legal next of kin under the state law, and then handling the paperwork to get the assets transferred to the legal next of kin under that state's laws.
The administrator needs to obtain the death certificate, inventory all the assets and debts, and complete the court forms to move the assets through the court administration process. With a simple estate, this can be concluded very quickly, often within a few weeks.
Note that if the deceased left a will, the estate will go through the probate process, where the will is validated and its instructions followed. The state-specific administration proceedings occur only if there is no will.