Most people have heard the term “next of kin,” usually in connection with a deceased person. Who is “next of kin,” and why does it matter? In the probate setting, it is important to identify someone’s legal next of kin when they have died without a will and their estate must be managed and assets distributed.
If a deceased person (decedent) has died with a will, it almost certainly identifies a person whom the decedent selected to administer the probate estate. This person is often a close relative, but need not be. The executor named in the will has no legal authority to act on behalf of the estate until they are appointed by the court.
If there is no will, however, the decedent’s next of kin has priority to be appointed as administrator of the estate. The administrator has numerous responsibilities, including identifying all interested parties and notifying them of the probate proceedings; securing the property of the estate; and paying all legitimate debts of the estate before distributing the remaining assets.
Answering the question who is next of kin also matters, of course, when it comes time to distribute those assets. If the decedent had left a will, estate assets would pass to the beneficiaries named in the will.
But when someone dies intestate (without a will), estate assets are distributed according to Ohio’s law of intestate succession. Intestate succession attempts to distribute assets as the deceased person probably would have, if he or she had made an estate plan. Most people would plan to distribute their assets to their closest relatives—their next of kin.
To determine who would be considered next of kin under Ohio law, take a look at Ohio Revised Code Section 2105.06. In essence, that statute gives priority to inherit first to the surviving spouse, then to lineal descendants of the deceased (children and grandchildren), then to more distant relatives, such as parents, siblings, and grandparents.
Ohio courts give priority to a surviving spouse to serve as administrator of a decedent’s estate. If the spouse declines to serve, adult children are given next priority, so long as they reside in Ohio.
It might seem logical that “next of kin” means “closest relatives,” but in the United Kingdom, an individual gets to appoint his or her own “next of kin” for legal purposes. That person might be a close friend, and not a relative at all.
If you are applying to open and administer the decedent’s estate, you must attest on the application that you are either the surviving spouse or next of kin. If serving as administrator, you must also provide the court with the names and contact information of the surviving spouse, children, next of kin, other beneficiaries on a court form.
It is rare that an individual claims to be next of kin if they are not, and it is equally as rare for an individual to identify someone as next of kin on court documents who does not fall into that category. It is more likely that someone who should be identified to the court as a relative will be omitted from the form. When that happens, it is usually because the administrator was not aware of the family member, such as an adult child from a decedent’s prior relationship. So, who is the next of kin in this scenario, and what should you do if you believe it is you?
What should you do if you believe that you are entitled to be listed as a family member on a decedent’s probate documents, but have been left off of those documents? You need to act swiftly to preserve any rights you may have to the decedent’s estate.
If you suspect that your omission from the list of relatives was a simple error, you could approach the administrator of the estate, remind them of your relationship to the deceased, and ask that they amend the court form to include your name. On the other hand, if you believe the omission is intentional or that the administrator would dispute your right to participate in the probate proceedings, you will probably need the help of an experienced probate litigation attorney who has experience in kinship proceedings.
You should assemble any documents you have that show your relationship to the decedent. For instance, if the decedent was your legal parent, your birth certificate should identify them as such. You may also be able to execute an affidavit asserting the facts of your relationship to the decedent. Your attorney can advise you what proof will be acceptable in your jurisdiction.
It is not often necessary for an heir to prove their status as next of kin, but there is one way to avoid the potential for disputes: by creating an estate plan that identifies the people to whom you want to leave your assets, you can prevent confusion over your wishes and achieve the results that you intend. Gudorf Law can help you prepare an estate plan that will ensure it is clear who your next of kin is and avoid the disputes about who will receive your assets.