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Next of Kin Order in Estates

The next of kin usually refers to your closest living relative. The closest living relative can be either by blood or created by legal relation, such as a spouse or an adopted child. In New York, the next of kin order is important in three instances:

  • To know who will inherit when you die without a will;
  • To know who will be appointed as administrator when you die without a will; and
  • To know who is an interested party that needs to consent to the probate of your will.

To know who will inherit when you die without a will

The next of kin order is important to know who will inherit when you die without a will. The next of kin depends on who survives the person when such person dies. To know who will inherit from you, the applicable section is New York EPTL § 4-1.1:

If decedent is survived by: The following persons shall receive decedent’s estate:
Spouse and issue (children and their descendants) $50,000 plus ½ to spouse, and balance to children or children’s descendants by representation
Spouse and no issue Everything to the spouse
Issue and no spouse Everything to the issue by representation
No spouse, no issue Everything to the surviving parents
No spouse, issue, or parents Everything to the issue of the parents by representation
No spouse, issue, parents, or parents’ issue To the grandparents or issue of grandparents by representation, ½ each to the paternal and maternal side

The word “issue” refers to the descendants of a person. In determining next of kin, half-blood relatives are treated the same as full-blood relatives, while adopted children have the same inheritance rights as a natural born child. The presence of a class or degree of living relative precludes the next degree from inheriting.

For example, based on the table above, if you died without a will survived by your spouse, children, parents, and siblings, the presence of your spouse and children will preclude your parents and siblings from inheriting from you. In this case, your spouse will receive $50,000 plus ½ of the remainder estate, while the remaining children will receive the other ½ of the remainder estate. Your parents and siblings will receive nothing.

If you died without a will survived by a spouse, your parents, siblings, and without any children, your entire estate goes to your spouse. Your parents and siblings will not receive anything.

To know who will be appointed as administrator when you die without a will

The next of kin order is also important to know who will be appointed as administrator when you die without a will. An administrator is the person appointed by the court to be your estate’s personal representative and who will manage your estate, pay your debts, and distribute your remaining assets to the heirs.

In New York, the applicable provision is SCPA § 1001. This provision states that the order of priority to be granted letters of administration when you die without a will is as follows:

  • surviving spouse,
  • children,
  • grandchildren,
  • father or mother,
  • brothers or sisters,
  • any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the largest share in the estate.

Although the language and terms used in SCPA § 1001 and EPTL § 4-1.1 are different, the persons listed as next of kin order are similar. The surviving spouse, the children, grandchildren (or issue), parents, and siblings are listed in the same order of priority.

Similarly, the presence of a degree or class of living relatives precludes the other class from being considered as administrator. In the same example above, if you die survived by your spouse, children, parents, and siblings, your surviving spouse is given preference in the grant of letters of administration. If you die with only your children, parents, and siblings as living relatives, the presence of your children precludes your parents and siblings from being considered as administrator, unless your children are ineligible or unqualified.

To know who is an interested party that needs to consent to the probate of your will

Usually, the next of kin order can be disregarded when you die with a will. In your will, you can omit your next of kin (except your spouse) and leave your estate to third persons who are not your closest living relatives.

However, the next of kin order is still important when you die with a will. The next of kin, as identified in EPTL § 4-1.1, needs to consent to the probate of your will, even if they have been omitted from the will. If your next of kin refuses to consent to the probate of the will (by executing a waiver and consent), the court will issue a citation directing your next of kin to appear on hearing date and show cause why the petition to admit your will as genuine and authentic should not be granted.

In addition, the next of kin order is also important when you die without a will because the next of kin identified in EPTL § 4-1.1 will be the persons entitled to object to the probate of the will. For example, if you died with a will, survived by your spouse, children, parents, and siblings, and you omit your parents and siblings in your will, they are not entitled to object to the will because under EPTL § 4-1.1, your next of kin are your spouse and children. Since your spouse and children are alive, it precludes your parents and siblings from being next of kin and objecting to the probate of the will.

Inheritance under the next of kin order can be complicated, especially when one has been left out in the will. We have represented executors, administrators, will beneficiaries, and omitted heirs in the will in many estate proceedings. Whatever your estate issue is, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

References:

EPTL § 4-1.1