"Next of kin" is one of those phrases that seems easy to understand, but it has a very specific legal meaning relevant to inheritance laws.
Before we talk about next of kin, we have to discuss intestacy (don't worry, we won't quiz you on this).
If someone dies intestate, it means that they didn't have a will or inheritance plan in place. If a will exists, next of kin isn't as relevant because the will or other estate planning done in advance says who inherits what and names the executor.
Dying intestate happens a lot, though. Around 1 in 2 people who pass away don’t have a will [*]. When that happens, the court identifies who inherits the estate and names a personal representative (which is another name for an executor/executrix) according to their local intestate laws.
So the generic definition of next of kin is just the closest blood or legal relative, but when determining next of kin in this context, we're actually looking at two different things: who inherits the estate (as a beneficiary) and who's responsible for making sure that the estate is distributed correctly (as an executor or personal representative).
Next of Kin and Inheritance Laws
In an intestate case, the next of kin in regards to inheritance is always a relative or a partner.
There's an order to identify next of kin that differs from state to state, but it is generally close to this:
- Spouse or legal partner
- Children (including legally adopted children, but not step-children who were not adopted by the deceased)
- Aunts and Uncles
- Nieces and Nephews
Next of Kin for Administrative Purposes
In intestate cases where there's a spouse or legal partner, that person is almost always going to be the next of kin for the purposes of naming a personal representative, a.k.a. Handling the “administration” of the estate.
In most states, the spouse and any legal children (natural or adopted) will split the inheritance according to the state's specific laws.
If the deceased didn't have a spouse, their adult children are next in line to be considered as the personal representative. This doesn't have anything to do with who's the oldest; the court will consider every adult child for willingness and ability to serve as the personal representative and choose based on who they think is the best fit for the role.
If there's no spouse or children to serve as the personal representative, the court will consider the deceased's parents and siblings.
Commonly Asked Questions About Next of Kin
What if we're not legally partners?
How a legal partnership is determined depends on your state. Marriages are always considered legal partnerships. Your state might also allow civil unions or domestic partnerships. Common-law marriages are allowed in only a few states. In short, it might be worth checking with a lawyer to determine the legal status of your relationship if you're not sure.
Keep in mind: live-in partners with no legal status aren't going to be considered next of kin under any circumstances. However, this doesn't mean that you can't work with the designated next of kin to make sure that your loved one's wishes are followed.
What if we're separated?
If you're separated but have never filed separation paperwork, you are still considered legally married at the time of death. You may be identified as next of kin, but the court can't make you act as the personal representative if you don't want to.
If you're legally separated, you may no longer be considered next of kin, depending on state laws. This is another situation where it can be beneficial to consult a lawyer to determine exactly what your state's laws say.
Can a friend be named the next of kin?
The short answer is no. If a will is in place, the deceased can identify anyone they want as the executor or executrix of the estate. But if there's no will in place, the court will not identify a friend as the next of kin.
What if there's no next of kin?
It's rare that no next of kin can be found, but it happens. In that case, the deceased's assets go to the state. This process is called escheating.
You've Been Named Next of Kin — What Now?
If you've been named next of kin only for inheritance purposes, the estate's personal representative will contact you with further information. It's a lot more likely, though, that you've been named next of kin for both inheritance and administrative purposes. This means that you're the personal representative for the estate, and there's likely a lot of weight on your shoulders right now.
Don't worry. We're here to help you through it.
If you are (or at least think you are) the executor or personal representative, start by reading this guide: What is Probate? Beginner’s Guide + Exact Timeline.
That’s going to give a good handle on everything you’ll be responsible for moving forward.
Here’s the short version, though:
Make funeral arrangements
Unfortunately, funeral arrangements need to be made quickly, and you may still be deep in mourning as you're making these decisions. Contact a local funeral home as soon as you can. They will walk you through many of the steps you need to take next.
When you're meeting with the funeral home to make decisions, try to keep a clear head in regards to cost. Although it might seem like your loved one would want the best of everything, it's more important to make sure that you create a service that honors who they were as an individual. Bring a trusted family member or friend with you if you think that will help.
File for probate
Probate is the legal process where the inheritance is dispersed, and bills (including taxes) are paid. Although the court may have already become involved in the estate when it named the next of kin, the personal representative is still required to formally begin the probate process (or file a form to bypass it).
There are different levels of probate. Although laws vary from state to state, there are generally three levels of probate:
Level 1 - Passing assets by affidavit (this essentially skips probate)
Level 2 - Small estate administration (often used when the majority of the deceased's assets are tied up in their house)
Level 3 - Full probate
You can hire a lawyer to assist you with the probate process. However, this is often a costly option. You can also handle probate on your own. Although it can be a time-consuming process, it's not necessarily difficult. Atticus can help you figure out the forms you need and take you through the process, step by step.
See how Atticus makes probate easier (our service can be paid via the estate as well!)
Expect the probate process to take anywhere from a few months to upwards of a year, depending on how complicated it is. The amount of time can feel daunting, so it's often better to just focus on your next step.
Disperse the estate
Once probate is complete, the personal representative is responsible for making sure that assets are appropriately dispersed. First, any debts, fees, or taxes will be settled, and then the representative will ensure that money, property, and other physical items are given to the person or people they now belong to.
Yup. We know — there's a lot to do when someone passes away, but just remember to take it step by step. You got this.
Get a list of the exact steps you need to take when someone passes away
We made something that makes all of this (probate, estate settlement, etc.) easier. The after-death responsibilities are intense, and having an exact list of to-dos + support + the right forms for your state makes such a big difference.