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Next of Kin Order in Estates

The next of kin order is generally important when you die intestate, i.e., when you die without a will, or when you die testate, i.e. when you die with a will, and the next of kin would like to object to the probate of the will.

In New York, the next of kin order is provided under EPTL § 4-1.1, which states the descent and distribution of a decedent’s estate if such decedent died without a will.

Next of kin order in New York estates

Under EPTL § 4-1.1, the next of kin order is the following:

  1. When a spouse and descendants are alive, $50,000 plus ½ of the remainder to the spouse and the balance to the descendants by representation;
  2. When a spouse is alive with no descendants, everything goes to the spouse;
  3. When descendants are alive but no spouse, everything goes to the descendants by representation;
  4. When no spouse or descendants are alive, everything goes to the surviving parent/s;
  5. When no spouse, descendants, or parents are alive, everything goes to the descendants of the parents, by representation;
  6. When no spouse, descendants, parents or parents’ descendants are alive, one-half goes to the surviving paternal grandparents or their descendants by representation and the other one-half to the surviving maternal grandparents or their descendants by representation. The descendants of grandparents shall be limited to the grandchildren of such grandparents.
  7. When no spouse, descendants, parents, parents’ descendants, grandparents, grandparents’ descendants until the grandchildren are alive, one-half each to the great-grandchildren of the maternal and paternal grandparents.

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.

Importance of next of kin order when a person dies without a will

When you die intestate, you have died without a will and you have not specified how your remaining assets will be distributed. In this case, since there is no specific intention from the decedent, New York state law will apply in distributing a decedent’s assets who has died without a will. The decedent’s assets will then be distributed in accordance with the next of kin order, as provided above in EPTL § 4-1.1.

For example, you died without a will leaving $100,000 in your bank account. You are survived by your second spouse, two children from a previous marriage, and one child with your second spouse. Since you have no will, EPTL § 4-1.1 will dictate, first, the preference in persons who can apply as administrator of your estate, and second, how your estate will be distributed. Assuming, for ease of convenience, that $100,000 is your net estate, following the next of kin order under EPTL § 4-1.1, your second spouse will receive $75,000, and each of your three children will receive $8,333.33.

Let’s assume that you died without a spouse or children but were survived by your mother and three siblings. In this case, your mother has preference to be the administrator and will also get the entire estate net asset of $100,000. What if your mother already had worsening dementia when you died? In this case, your mother will still receive everything, but she cannot apply for letters of administration because she is incapacitated. Any of your siblings can then be appointed as administrator. In order for your mother to receive the net estate, the Surrogate’s Court will also require the appointment of a guardian for your mother to receive the $100,000.

Importance of next of kin order when a person dies with a will

When you die testate, i.e., with a will, you dictate who can receive your assets. Generally, there is no limitation as to how much you can give away. However, your spouse has a right of election under EPTL § 5-1.1A if he receives less than $50,000 or 1/3 of the net estate, whichever is higher. The net of kin order becomes important in testate succession because the next of kin is the one entitled to be notified of and to object to the probate of the will.

In the same example above, you died with a will with $100,000 in your bank account. In your will, you left your second spouse $40,000, your child with your second spouse $10000, your parents $20,000, your friend $5000, and the remainder to charity. You left out your two children from your previous marriage since they grew up with their mother, you were never close to them, and they were never in close contact with you. In this case, during probate proceedings, your spouse can elect and has the right to receive $50,000 instead of the $40,000 you left her in the will under EPTL § 5-1.1A. Your two children from your previous marriage have the right to be notified of the probate of the will and have the standing, as the next of kin, to object to the probate due to testator’s incapacity, undue influence, and other grounds.

How about your siblings who were still alive when you died? Can they also object to the probate of the will? No, because in the next of kin order under EPTL § 4-1.1, your siblings only have standing to object when they are the next to inherit under intestate succession. Thus, if you died without no spouse, descendants, or parents, and your will left nothing to your siblings, your siblings can object to the probate of the will because if the will would not be admitted to probate, your siblings would inherit under the next of kin order.

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.