Next of Kin: Who It Is, What It Means for Estates

If you die without a will, a probate court may grant your assets and certain responsibilities to your next of kin.
Dalia Ramirez
By Dalia Ramirez 
Edited by Tina Orem

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Next of kin is a legal term that refers to a deceased person’s closest living relative by blood, marriage or legal bond (such as adoption). If you die without a will, a probate court may distribute your assets to your next of kin

Cornell Law School Legal Information Institute. Next of Kin. Accessed Jul 7, 2023.

  • Next of kin designation varies by state but typically includes spouses, children, parents and siblings in that order, followed by aunts, uncles and cousins

    American Academy of Family Physicians. Evaluating Medical Decision-Making Capacity in Practice. Accessed Jul 7, 2023.

  • Health care providers might ask your next of kin to make medical decisions for you if you become incapacitated and haven't chosen a health care proxy

    Cornell Law School Legal Information Institute (LII). Next of Kin. Accessed Jul 7, 2023.

  • Relying on next-of-kin relationships is generally a last resort and may not guarantee that your wishes are obeyed. Estate planning tools such as wills and advance directives can help ensure that your assets go to your chosen beneficiaries and your health care preferences are respected if you’re incapacitated.

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Next of kin rules

Next of kin designations vary by state, but they often follow this order:

  1. Spouses. A spouse technically isn’t “next of kin,” but in many states, they’ll still be first in line to inherit your estate.

  2. Direct offspring, including children and grandchildren, both by blood and adopted. Assets are often divided equally among offspring. If you want to distribute assets unequally, do so explicitly in your will. States typically don’t consider foster and stepchildren as next of kin, so consider explicitly naming your beneficiaries in your will or trust.

  3. Parents, both by blood and legally adoptive. 

  4. Siblings, both full and half. Some states prioritize full siblings.

  5. Extended family, including nieces, nephews, aunts, uncles, grandparents and cousins. Some states prioritize nieces and nephews.

If a person doesn't have a will and a designated health care proxy, courts or medical providers might give the person's next of kin the following:

  • Inheritance of the estate. Intestate succession laws typically name the next of kin as the primary heir to the deceased’s estate.

  • Responsibility for making funeral arrangements. If the deceased person didn’t have a will or didn’t assign someone to do this in the will, the next of kin may be responsible for planning the funeral (typically the estate pays the expenses).

  • Responsibility for probate filing. If the deceased person didn’t have a will that named an executor, the state probate court might contact the next of kin to initiate the probate process and handle the deceased’s estate. The next of kin may be responsible for notifying other relatives, filing estate taxes, paying debts from the estate funds and distributing assets.

  • Responsibility for making medical decisions. If someone becomes incapacitated but doesn’t have a living will or a designated health care proxy, medical providers might ask the next of kin to make important choices about interventions such as CPR or life support. This also means next of kin might get access to medical records.

Disadvantages of using next of kin for estate planning

Allowing the state to pass important end-of-life decisions to your legal next of kin — instead of people you name in a will — means there’s no guarantee your wishes will be honored. Consequences can include any of the following:

  • Foster children and stepchildren may be excluded. Next-of-kin designation typically covers blood and certain legal relationships, so other relatives may be left out of your estate distribution if you don’t name them as beneficiaries in your will

    National Legal Research Group. Unadopted Stepchildren as Intestate Heirs. Accessed Jul 7, 2023.

  • Your next of kin may have responsibilities they weren’t aware of. If you die without a will, the state may contact your next of kin to handle your estate — a role they may not be prepared for.

  • Your wishes may not be honored. A next of kin may not know your preferences for medical treatments, funeral arrangements or asset distribution.

Next of kin tax implications

A next of kin may be responsible for filing the deceased person’s final federal and state income tax returns, filing state and federal estate tax returns for the deceased and ensuring that the estate taxes are paid

. Most estates aren’t subject to federal estate tax. The federal estate tax ranges from rates of 18% to 40% and generally only applies to assets over $12.92 million in 2023 or $13.61 million in 2024. However, some states have their own estate taxes that apply to smaller estates.

A next of kin who inherits assets typically owes income tax on the inheritance only if they are in one of the six states with an inheritance tax: Iowa, Kentucky, Maryland, Nebraska, New Jersey and Pennsylvania (some exclusions exist in these states)

American College of Trust and Estate Counsel. State Death Tax Chart. Accessed Jul 7, 2023.

Next of kin vs. power of attorney

Next of kin isn't the same as power of attorney.

  • A power of attorney is a legal document that gives someone the authority to make financial or medical decisions on your behalf while you are alive. This person may be called a health care proxy or agent. 

  • If you don’t have a power of attorney, your medical provider or the state may contact your next of kin to make financial or medical decisions on your behalf. If you do have a power of attorney in place, your designated agent will be in control, rather than your next of kin.

  • A person who is next of kin generally can’t override an existing power of attorney. However, a next of kin can petition the court to challenge a power of attorney designation if they think you were under undue influence.

Frequently asked questions

Next of kin typically doesn't override a valid will. However, if someone successfully contests your will in court, your state's intestacy laws may look to your next of kin to handle and potentially inherit your estate.

If you die without a will and the state can find no blood or legal relatives, your estate may go through escheat. In that case, the state takes ownership of the assets. However, this can only happen if the state can find no relatives at all, even distant cousins.

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