How to Determine Next of Kin
Find your state’s statute., Distinguish between common law and community property states., Read the statute., Create a family tree., Ask a lawyer questions.
Step-by-Step Guide
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Step 1: Find your state’s statute.
In the United States, a person’s “next of kin” is determined by state statute.
Typically, you will want to know this information if someone dies without making a will.
The person’s next of kin then inherit any estate property.
To find your state’s statute, you can visit a local law library and ask the librarian for the statute on “intestacy.” This is the term for what happens when a person dies without a will.
You can also search on the Internet.
Type “your state” and “intestacy statute” in your favorite web browser. -
Step 2: Distinguish between common law and community property states.
Most states are considered to be common law property states, which means each asset belongs to the spouse who acquired it.
Illinois is one example of a common law property state.
However, some states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) are considered to be community property states, which means all assets acquired during a marriage are owned by both spouses.If you live in a community property state, all community property will be inherited by the spouse.
Separate property will then be split according to your state's statute.
In general, the spouse will also inherit 1/3 to 1/2 of the separate property.
However, if there is no spouse, children, parents, and siblings will inherit everything., Once you have the statute, you should read it to find out the next of kin rules in your state.
Illinois, for example, has a typical order of “next of kin.”Spouse and descendants.
If there is a surviving spouse, then he or she will take 50% of the estate and your “descendants” will divide the other 50%. “Descendants” are children (whether adopted or biological) or the children of your children (i.e., grandchildren).
Step-children are not next of kin unless adopted.
Grandchildren are descendants only if their parent (the deceased’s child) is also deceased.
If there is no spouse, then the descendants take 100%.
Likewise, if there are no descendants, the spouse takes the entire (100%) of the estate.
Parents and siblings.
They are next of kin only if there is no spouse or descendants.
In most states, parents will inherit before siblings (e.g., New York).“Siblings” also includes descendants of siblings, i.e., a niece or nephew of the deceased.
However, the niece or nephew qualifies as next of kin only if their parent has died.
As an example: suppose Allen dies and has no spouse or children.
He has two sisters, Becky and Christy.
As siblings, they are his next of kin.
However, Christy might have died before Allen.
In this situation, her son, Donald, qualifies as “next of kin” along with his aunt, Becky.
Grandparents.
Grandparents are descendants only if there are no parents and siblings still alive. , Once you have read the statute, you should make a family tree.
Put the deceased’s name at the top of the tree.
Then draw lines down to each child.
Then draw a line down below each child.
List the children each child has had.
If someone is deceased, then note that.
Things are somewhat complicated if the deceased had a child which was adopted by someone else.
If the adoptive parent was a relative or step-parent, then the child may still qualify under state law as a descendant.
However, if the child was adopted by a stranger, then he or she is no longer a descendant of the deceased.As you create the tree, you can see who qualifies as “next of kin.” If the deceased’s children are all dead, then look to see if grandchildren are alive.
They will then be “next of kin.” If there are no grandchildren or great-grandchildren, then you look to parents and siblings as next of kin. , Things can get complicated when someone dies at a very old age.
Often, some of their children have predeceased them.
You might have a hard time figuring out who qualifies as next of kin.
If you have questions, you should contact an estate attorney, who can advise you about who qualifies as next of kin.
To find a lawyer, you can visit your state’s bar association, which should have a referral service. -
Step 3: Read the statute.
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Step 4: Create a family tree.
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Step 5: Ask a lawyer questions.
Detailed Guide
In the United States, a person’s “next of kin” is determined by state statute.
Typically, you will want to know this information if someone dies without making a will.
The person’s next of kin then inherit any estate property.
To find your state’s statute, you can visit a local law library and ask the librarian for the statute on “intestacy.” This is the term for what happens when a person dies without a will.
You can also search on the Internet.
Type “your state” and “intestacy statute” in your favorite web browser.
Most states are considered to be common law property states, which means each asset belongs to the spouse who acquired it.
Illinois is one example of a common law property state.
However, some states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) are considered to be community property states, which means all assets acquired during a marriage are owned by both spouses.If you live in a community property state, all community property will be inherited by the spouse.
Separate property will then be split according to your state's statute.
In general, the spouse will also inherit 1/3 to 1/2 of the separate property.
However, if there is no spouse, children, parents, and siblings will inherit everything., Once you have the statute, you should read it to find out the next of kin rules in your state.
Illinois, for example, has a typical order of “next of kin.”Spouse and descendants.
If there is a surviving spouse, then he or she will take 50% of the estate and your “descendants” will divide the other 50%. “Descendants” are children (whether adopted or biological) or the children of your children (i.e., grandchildren).
Step-children are not next of kin unless adopted.
Grandchildren are descendants only if their parent (the deceased’s child) is also deceased.
If there is no spouse, then the descendants take 100%.
Likewise, if there are no descendants, the spouse takes the entire (100%) of the estate.
Parents and siblings.
They are next of kin only if there is no spouse or descendants.
In most states, parents will inherit before siblings (e.g., New York).“Siblings” also includes descendants of siblings, i.e., a niece or nephew of the deceased.
However, the niece or nephew qualifies as next of kin only if their parent has died.
As an example: suppose Allen dies and has no spouse or children.
He has two sisters, Becky and Christy.
As siblings, they are his next of kin.
However, Christy might have died before Allen.
In this situation, her son, Donald, qualifies as “next of kin” along with his aunt, Becky.
Grandparents.
Grandparents are descendants only if there are no parents and siblings still alive. , Once you have read the statute, you should make a family tree.
Put the deceased’s name at the top of the tree.
Then draw lines down to each child.
Then draw a line down below each child.
List the children each child has had.
If someone is deceased, then note that.
Things are somewhat complicated if the deceased had a child which was adopted by someone else.
If the adoptive parent was a relative or step-parent, then the child may still qualify under state law as a descendant.
However, if the child was adopted by a stranger, then he or she is no longer a descendant of the deceased.As you create the tree, you can see who qualifies as “next of kin.” If the deceased’s children are all dead, then look to see if grandchildren are alive.
They will then be “next of kin.” If there are no grandchildren or great-grandchildren, then you look to parents and siblings as next of kin. , Things can get complicated when someone dies at a very old age.
Often, some of their children have predeceased them.
You might have a hard time figuring out who qualifies as next of kin.
If you have questions, you should contact an estate attorney, who can advise you about who qualifies as next of kin.
To find a lawyer, you can visit your state’s bar association, which should have a referral service.
About the Author
Kevin Hart
Specializes in breaking down complex practical skills topics into simple steps.
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