What does “next of kin” mean in estate planning?

Creating a last will and testament is about more than simply deciding what happens to your belongings when you pass away. It’s a way to leave meaningful gifts for the people who matter most to you.  

Your will gives your loved ones a roadmap for your final wishes, including who should receive each of your possessions. But if you pass away without a will, your local court will rely on state laws to determine who inherits your estate.

This means turning to your next of kin.

What is next of kin?

“Next of kin” refers to your closest living blood relative (or relatives), like your children, parents, or siblings. People related to you by law, like your spouse or an adopted child, are also legally considered your next of kin.

If you pass away with a will, your property transfers to your chosen beneficiaries — the people and organizations you name in your will to receive your property. But if you die without a will (known as dying intestate), your next of kin is first in line to inherit your assets and property. Your local court will determine your next of kin based on an arbitrary set of rules called intestate succession laws.

What is the order of next of kin?

If you die without an estate plan, your state’s intestate succession laws will determine your next of kin and the order in which they should receive your property. While it can vary by state, the next of kin order is generally:

• Your spouse
• Your children and grandchildren (both biological and adopted)
• Your parents
• Your siblings (some states prioritize full siblings over half-siblings, while other states consider them both equally)
• Your extended family (like nieces, nephews, grandparents, and cousins)

Here are a few examples of how intestate succession works:

• Bill is married and has no children. If Bill passes away without an estate plan, his spouse will inherit his entire estate.
• Susan is not married and has two children. If she passes away without a will, her estate will be divided equally between her children.
• Raj is not married, has no children, and passes away without a will. If his parents are still living, his estate will be transferred to them. If his parents are deceased, his estate will go to his next living relative: first his siblings, then his half-siblings, then to his extended family.

An important note: Your foster children, stepchildren, and step-siblings aren’t considered next of kin in the eyes of the law. If you want these individuals to inherit part of your estate, you must have an estate plan and name them as beneficiaries.

Next of kin rights and responsibilities

We never know when the unexpected might happen. That’s why it’s important to plan ahead by creating important estate planning documents, like a will or a power of attorney.

These documents will help guide how your affairs are managed if you pass away or become incapacitated and can’t manage your own care. But if you don’t have these documents in place, your local court may give your next of kin the authority to settle your affairs or make decisions on your behalf.

Your next of kin’s rights

If you don’t have these estate planning documents and you pass away or become incapacitated, your next of kin will be given certain rights over your information and estate. These include:

• The right to inherit your assets: Depending on state intestacy laws, your next of kin is typically named heir to your estate. This means they’ll have the right to inherit some or all of your assets.
• The right to access your information: Your next of kin has the right to know any information that will help them make informed decisions about your healthcare, finances, and estate. For example, if you were hospitalized and in a coma, they have a right to access your medical records in order to determine what type of care you need.
• The right to act on your behalf: Your next of kin has the right to legally act on your behalf and make decisions about your estate or care. This includes distributing your assets, paying debts, or filing estate taxes when you pass away. If you’re incapacitated, this could mean making decisions about what healthcare you receive, including emergency care, treatments, hospitalization, or any other medical matters.

Your next of kin’s responsibilities

If you pass away without a will, your local court may choose your next of kin to be the administrator of your estate. This means they’ll be in charge of distributing your assets and settling your affairs.

During estate administration, they’ll be responsible for:

• Notifying loved ones: Your next of kin will contact your loved ones (and other important contacts, like your bank) and let them know you passed away.
• Identifying and distributing assets: If you didn’t have a will, your next of kin will  take an inventory of your assets and distribute them according to your state’s intestacy laws.
• Paying debts: If you leave any debt behind when you pass away, your next of kin will pay the debt using assets from your estate. This can include credit card balances, hospital bills, mortgages, or loans.
• Filing estate taxes: Depending on the total value of your estate, your next of kin may have to file estate taxes. In 2023, the federal estate tax exemption is $12.92 million, but your state’s exemption may be much lower.

Frequently asked questions

Who is your next of kin if you’re not married?

If you’re not married and don’t have a will, your children are first in line to inherit your estate. This only includes your biological or adopted children. Foster and stepchildren are generally not considered next of kin in the eyes of the law. If you want them to inherit assets from your estate, you must have a valid will.

If you don’t have children, your state’s succession laws will consider your parents first, followed by your siblings, nieces or nephews, and extended family members.

Is your eldest child your next of kin?

When it comes to inheritance, all of your biological and adopted children are considered your next of kin — not just your eldest child. This means if you die intestate and your children are first in the line of succession, they’ll each inherit an equal share of your estate.

Without a will, the court may choose one or more of your children to be the estate administrator. This person is responsible for closing your estate, which includes paying your debts and distributing your assets according to state intestacy laws. Anyone can volunteer to serve in this role. If no one volunteers, the court will generally appoint your next of kin — usually your spouse or one of your adult children.  

Does next of kin override power of attorney?

No, next of kin can’t override an existing power of attorney.

A power of attorney (POA) is a legal document that lets you grant someone the authority to make financial or medical decisions on your behalf, should you become unable to. This person is known as your agent or proxy. If you become incapacitated, your agent has the legal authority to act on your behalf, not your next of kin (if these are different people).

In most cases, only you (as the person who created the POA) can change or revoke the document’s terms. Your next of kin or loved ones can challenge your POA to try and override it, but they need to have compelling legal grounds to do so. For example, maybe they think you were pressured into creating your document by a family member or caretaker. They can’t challenge your POA simply because they don’t like it.

Does next of kin override a will?

No, next of kin does not override a will — but only if the will is legally valid.

If your will is not valid (for example, if you didn’t sign it) or if someone successfully contests your will, the court will treat your estate as if you didn’t have a will. That means following state intestacy laws to determine who should inherit your assets — your next of kin.

To make sure your wishes are known and followed, you should have a legally valid will. Learn more about how to make your will legal.  

What happens if you have no next of kin?

If the court can’t find anyone related to you by blood or marriage, the state will take ownership of your property as a last resort. This rarely happens, because even your distant relatives can inherit under intestate succession laws.

The best way to avoid the complications of intestacy is to make sure you have a will.

Make your wishes known by having a will

Next of kin is a legal term that’s usually only used in estate planning if you pass away without a will. It refers to your closest living relative by blood or by law, like your spouse, children, or parents. It doesn’t include others who may be dear to you, like your friends, caregivers, or colleagues.

If you die without a will, your assets will likely pass to your next of kin based on your state’s laws, meaning your wider circle of loved ones won’t be able to benefit from your estate, even if you wanted them to.

Having a will gives you control over your property and your legacy, and gives you the opportunity to leave meaningful gifts for all of the people and causes close to your heart — not just the ones considered closest to you by the law.

FreeWill makes writing your will easy. With our free will-making tool, you can create your will in as little as 20 minutes — completely for free.