Laws on the Next of Kin
By Martin Brieger, Site Editor.
If someone dies without having created a will, state laws will determine who inherits the estate. If there are any surviving children or a spouse, these are considered to be next of kin, and generally inherit the entire estate. Although these laws vary by state, there is a common thread that determines who is next of kin if there are no surviving children or a spouse.
In the event that a person does not leave a will when they die, a probate judge will appoint a representative to locate relatives of the deceased and distribute the estate assets to them. In this situation, the judge usually appoints the next of kin to the deceased to act as this representative if they are willing and able to. Essentially, they appoint the person who is most likely to inherit from the estate.
Intestate succession laws generally divide up the entire estate among any surviving children and spouse. Exactly how it is divided varies between states but it is always the case of the person’s spouse and children inheriting the estate. If there are no children, a surviving spouse will inherit everything and vice versa.
Laws stating who will inherit an estate in the event of no surviving spouse of children vary among states. Usually, the decedent’s parents or grandchildren are next to inherit. If there are no surviving parents, the decedent’s surviving brothers and sisters are considered. If there are no surviving siblings, it will then be the nieces and nephews of the decedent and thereafter, more distant relatives like aunts and uncles, followed by cousins. If there are absolutely no surviving relatives or if the deceased is survived by relatives so distant that they are not able to inherit by state law, the estate is conveyed to the state treasury. This process is called escheat.
When you leave a will, your relatives have the legal right to contest it if they would have inherited from the estate if you had died intestate (without a written will). Grounds for this include things like fraud, undue influence, errors and duress. For example, if the deceased left a surviving husband and child, each would have standing to contest the document as they would have inherited if they had died without a will. However, if the deceased had a favorite cousin or aunt, they would not be able to contest such a will. If the relatives are able to successfully contest a will, they receive the same portion of the assets that they would have if the deceased did not have a will.