Probate Laws on the Next of Kin

by Maggie Lourdes
    Probate judges enforce intestate inheritance laws.

    Probate judges enforce intestate inheritance laws.

    Jupiterimages, Creatas Images/Creatas/Getty Images

    When someone dies without a will, state laws -- the so-called "laws of intestate succession" -- determine who inherits the estate. If the deceased left a surviving spouse or children, these people are considered "next of kin" and generally inherit the entire estate. Although state laws vary, there is a common descent and distribution scheme that applies to determine who is next of kin -- that is, next in line to inherit -- if there is no surviving spouse or children.

    Intestate Succession

    When a decedent does not leave a will, a probate judge appoints a personal representative, sometimes called an administrator, to locate a decedent's relatives and distribute estate assets to them, after all the estate's debts are paid. Probate judges generally appoint a decedent's next of kin to act as personal representative if she is willing and available to serve -- in other words, they often appoint the person who is also most likely to inherit from the estate.

    Spouses and Children

    Intestate succession laws typically divide the entire estate among any surviving spouse and children. Exactly how the estate is divided varies among states, but a person's spouse and children always inherit the estate. For example, Michigan gives a surviving spouse the first $150,000 of an estate and divides the balance among the spouse and children. Florida, by contrast, gives the spouse the first $60,000 and divides the balance. If the decedent or surviving spouse has children with another person, adjustments are made to the divisions. A surviving spouse typically inherits everything if there are no children. Likewise, if there are living children, but no living spouse, the children generally inherit everything.

    Other Heirs and Next of Kin

    Laws about who inherits an estate if there is no surviving spouse or children vary among states, and it's important for you to learn the laws of your state. Typically, the decedent's grandchildren or parents are next to inherit. If there are no grandchildren or surviving parents, the descendants of the parents are typically next to inherit, such as the decedent's living brothers and sisters. If no siblings survive, nieces and nephews are typically next to inherit. Thereafter, more distant relatives, such as aunts and uncles, are next to inherit, followed by cousins based on their proximity in the blood line. If a decedent leaves no surviving relatives, or if she is survived by relatives so distant that state law prevents them from inheriting, her estate is conveyed to the state treasury by a process called escheat.

    Next of Kin Disputes

    When a decedent leaves a will, a decedent's relatives have "standing" -- meaning the legal right -- to contest a will if they would have inherited from the estate if the deceased had died intestate. For example, if the decedent left a surviving wife and child, the wife or child would have standing to contest the will, because they would inherit if the decedent had died without a will. His favorite aunt, on the other hand, would not have standing to contest such a will. If the decedent's relatives successfully contest a will, they generally receive the same portion of the estate they would have received if the deceased had died intestate. Grounds for will contests include such things as fraud, duress, undue influence and mistake.

    About the Author

    Maggie Lourdes is a full-time attorney in southeast Michigan. She teaches law at Cleary University in Ann Arbor and online for National University in San Diego. Her writing has been featured in "Realtor Magazine," the N.Y. State Bar's "Health Law Journal," "Oakland County Legal News," "Michigan Probate & Estate Planning Journal," "Eye Spy Magazine" and "Surplus Today" magazine.

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