Probate Laws on the Next of Kin

by Jack Ori ; Updated July 27, 2017

When somebody dies, the deceased's will must go through an extensive process before heirs can get their inheritances. The probate court must determine that any will left behind is valid and appoint an executor to distribute the estate's assets to the deceased's creditors before distributing any inheritance. If the deceased didn't leave a will, the probate court uses next-of-kin rules to determine who gets any inheritance.

Community Property States

In community property states such as California, normally a married couple's estate belongs equally to each spouse. Thus, next-of-kin laws have to take into account whether the deceased person had a spouse. If the deceased's spouse had passed away before the deceased, both the spouse's next of kin and the deceased's next of kin are entitled to a portion of the estate, since both spouses were equally entitled to the estate when they were alive.

Executor

If a deceased person leaves a will, the executor of the estate petitions the probate court. However, if there is no will, the family must appoint somebody to petition the probate court so that it may settle the estate and divide the property. The family may appoint somebody to act as executor and deal with the courts; there is no set procedure for determining who will perform this duty.

Next-of-Kin Rules

If the deceased person doesn't leave a will behind, the probate court must divide the estate's assets and assign them to heirs. State laws vary as to how the next-of-kin process works, but usually the state considers the spouse, children, stepchildren and parents, in that order. The spouse is entitled to the entire estate unless there are children or parents to consider; siblings of the deceased take lower priority than either the spouse or the parents and do not inherit anything unless there is no spouse, parent or child to inherit.

Consideration

If a person leaves no will behind at his death, the state cannot deviate from next-of-kin rules when dividing the estate. Thus, if you want inheritances to go to specific heirs, you must draft a will. You can change your will at any time while you are alive -- for example, to add grandchildren or change inheritance amounts -- so, there is little reason not to have a will once you have significant assets to give to your heirs.

About the Author

Jack Ori has been a writer since 2009. He has worked with clients in the legal, financial and nonprofit industries, as well as contributed self-help articles to various publications.