Probate Laws on the Next of Kin

By Lee Hall, J.D.

Probate Laws on the Next of Kin

By Lee Hall, J.D.

To die without a will is also known as dying intestate. The state law directing intestate succession then kicks in to determine who has rights to the assets, in order of priority. States have intestacy laws so that a family member receives assets when no will exists to explain what the deceased person wanted. The relevant state laws are those of the primary residence of the person at their time of death.

The Administration of an Estate

Upon notification of a person's death, the probate court in the county appoints an administrator. This person finds the living relatives of the deceased so that the relatives can receive assets from the estate after the creditors are satisfied.

Normally, the probate court appoints the next of kin as the personal representative who administers the estate.

Without a will to guide the distribution of the assets, the administrator follows the law of the state. There is a Uniform Probate Code, intended to provide nationwide consistency in the distribution of assets in various states; the Code, though, has only found acceptance in a minority of states. Therefore, turn to the specific state's intestacy laws to ascertain which relatives inherit and the portion of the estate they will receive.

Immediate Family

Intestacy laws generally put the surviving spouse first in line to receive part of the estate. If the deceased leaves behind a spouse and the couple's minor children, the surviving spouse, as caregiver, usually receives the full estate.

If their children are adults, the probate court oversees even distribution among the adult children and surviving spouse of the deceased. State law controls the portions each receive. In some states, the surviving spouse gets a half of the estate with the rest equally divided among the adult children.

In some cases, a spouse gets less than half of the estate. For example, this might be a surviving spouse from a second marriage with no children in common with the deceased.

If only adult children survive the deceased, they receive equal parts of the estate. If only a spouse survives, the spouse typically receives the full estate. Check the state law to find out if the deceased's parents are entitled to a portion of the estate along with the surviving spouse.

Other Heirs

Some people die leaving neither a spouse nor any surviving children. Here again, check the state intestacy laws. The deceased's parents typically inherit in this situation. Should the parents be deceased, siblings typically inherit. In the absence of any of the mentioned people, the intestacy law directs the assets to nieces and nephews.

Under the laws of some states, the search for qualifying relatives encompasses for grandparents, cousins, uncles, and aunts. Most states require the estate's administrator to search online and in the phone book and to ask friends and coworkers of the deceased about the existence of relatives.

After a reasonably thorough search, should no qualifying relatives exist, the property of the deceased escheats, or transfers, to the state. In other words, if a person dies leaving no qualifying relatives, any assets go to the state treasury.

Intestacy vs. Estate Planning

Consider planning your estate in advance. It will help save others time and trouble after you pass on and ensure the distribution of your assets fits your own intentions.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.