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What is the Legal Order of Next of Kin?

Jul 15, 2022 | Estate Planning Legal Blogs | Elder Law P.A

As you begin to learn more about inheritance law, you’re likely to come across one key term – “next of kin.” At its simplest, it just means the decedent’s blood relatives who are first in line to inherit his or her assets. It becomes more complex, though, when you realize that exactly how the legal order of next of kin works changes from state to state. In Florida, the next of kin rule comes into play when someone dies without a will. In this case, the court has to establish a next of kin relationship so the estate can be properly distributed. It is most important when there is no surviving spouse or children.

In general, when a person dies, the next of kin are usually the first in line to inherit the estate. An individual’s next of kin frequently precedes others when it comes to inheritance, especially when a will isn’t established. Except for the surviving spouse, the closest family members are related by blood. In Florida, the state law dictates who is considered the next of kin and the order in which they receive the inheritance. Additionally, the next of kin may also be responsible for making certain decisions like funeral arrangements, making medical decisions, and taking control of the estate.

Who Counts as Next of Kin in Florida?

In general, the legal order of next of kin includes children, parents, siblings, or other distant blood relations. A spouse does not fall into the legal order of next of kin, but he or she still has powerful inheritance rights over all next of kin who are blood relatives. If the decedent did not have a will, then the surviving spouse is usually the first in line to inherit the estate. In many cases, the spouse will usually inherit 100% of the estate. Without a surviving spouse, next of kin laws come into play. Generally, those next in line move down this list.

  • Decedent’s Parents
  • Decedent’s Siblings
  • Decedent’s Grandparents
  • Decedent’s Aunts and Uncles
  • Any kin of the last deceased spouse.

If no legal heir is identified, the state then becomes the owner of the property involved. If the only person in the legal order of next of kin is a minor, then a conservator will be appointed by the probate court to oversee the distribution and management of the estate until the child reaches the age of maturity.

The probate court will go to great lengths to search for the next of kin and in some cases, even great-grandparents and great-grandchildren may inherit the estate. In most cases, it is very unusual that the government will keep the estate- unless, of course, it cannot find any next of kin.

What about adopted children?

Legally adopted children are also considered rightful heirs under the legal order of next of kin, and the probate court makes no distinction between adopted and biological kin. For example, if the decedent has a biological child and later legally adopts another child, both are treated equally under the eye of the law. Further, after the adoption of the child, all other family members are considered next of kin as if they were biologically related from birth.

How is property inherited as next of kin?

When someone dies without a will, the probate court will appoint an executor or an administrator to help manage and distribute the assets. In most cases, the administrator may be a family member like the spouse or adult child. During probate, all the creditors and lien holders are identified. Once probate is over, the administrator will then first pay the decedent’s creditors and lien holders, take care of any residual taxes and then complete the documentation for the transfer of assets to the heirs according to the intestate laws.

In some cases, if the identity of the next of kin is not clear, a next of kin affidavit may be required before the estate can be transferred. In addition, to prove next of kin may also require government-issued photo identification or a birth certificate.

Do Next of Kin Receive Life Insurance and Other Investments?

With life insurance and other investments, the next of kin status is irrelevant. The reason is that in most cases these investments do have a named beneficiary. For example, when you buy life insurance, at the very beginning, you will be asked to name a beneficiary. So after the death of the deceased, the life insurance policy and other investments are transferred to the named beneficiaries, and they may not be the next of kin. If the beneficiary of the policy has already died, the court will consider the funds with the other assets in the estate.

Great Estate Planning Can Prevent Problems With Your Assets

It is important to understand that a properly executed will that names the beneficiaries usually has higher priority over the inheritance rights of next of kin. But if the decedent did not leave a will, the estate will pass on to the surviving spouse in Florida. Even if the surviving spouse remarried, this will not affect his or her inheritance rights.

If you want your estate distributed properly, and not necessarily just in the legal order of next of kin, then it is important to make a will. Without a will, the probate court will distribute your estate based on the intestate law of succession, and you may not want your estate distributed in that manner.

To learn more about estate planning and how we can help, please contact us today.

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