Many people believe there is a legal “order of next of kin” that determines inheritance and decision-making rights. It is just that, a belief. Although people assume a next of kin hierarchy applies in medical and intestacy situations, the term has no formal legal definition in the laws of England and Wales.
In this article, I will explain what next of kin means, who is considered next of kin, what rights they have, and the unique challenges of blended families.
What Is Next of Kin? (Meaning in UK Law)
“Next of kin” is a term of art that approximates to closest living relative, but it has no fixed legal meaning in English law. The understanding of ‘next of kin’ depends on the context in which it is being used.
The confusion arises because different situations apply different definitions. This possible confusion is the reason this term should not be relied upon – rather you should take steps to prevent the use of the term.
In medical and social care the term points one way; in inheritance it points another. In my experience, the term ‘next of kin’ is hinted at, but not mentioned in a single inheritance-related bit of paperwork.
Key Point: There is no single, universal legal definition of next of kin in English Law.
The Key Difference: Next of Kin vs. Legal Rights
Being next of kin to the extent the term is more than a hollow title, does not grant legal, administrative or inheritance rights. This is the most important misunderstanding I have seen affect families today, particularly in blended family situations.
You can eliminate this uncertainty and define your wishes using legal documents such as your Lasting Powers of Attorney (LPA) and your will.
When someone dies without a will, their estate is distributed according to rules of intestacy, but this is not the same as a fixed “legal order of next of kin.” There is no talk of ‘next of kin’ in the intestacy paperwork.
The question of next of kin only arises when someone has not expressed clear preferences on how they want their affairs handled both in their lifetime and on their death.
Next of Kin Hierarchy in the UK
There is no legal definition of next of kin, but the intestacy rules I mentioned above do establish a hierarchy for distributing an estate when someone dies without a will.
Under the Administration of Estates Act 1925, the inheritance follows this hierarchy:
- Surviving spouse or civil partner
- Children – if the child has died, then that dead child’s children
- Parents
- Brothers and sisters of the whole blood (then their children)
- Brothers and sisters of the half blood (then their children)
- Grandparents
- Uncles and aunts of the whole blood (then their children)
- Uncles and aunts of the half blood (then their children)
- If none of the above, the estate passes to the Crown (or Duchy of Lancaster or Duchy of Cornwall) Put another way, if you don’t write a will, the fruit of your life’s work could go to Prince William, as he is the Duke of Cornwall.
This hierarchy above applies specifically to intestacy. In medical or social care situations, the hierarchy may be interpreted differently depending on organisational policies. Many people expect common sense to prevail, and the problem with common sense is that it is not common.
If you want your estate to pass as tax-efficiently as possible, it pays to plan early with inheritance tax specialists.
What Next of Kin Is NOT
Many incorrect assumptions exist about next of kin. Here are the critical clarifications:
Being Next of Kin Does NOT Mean You Inherit: If the deceased person left a valid will, that will would determine inheritance, not the next of kin hierarchy. Even under intestacy rules, inheritance follows legal rules that may not benefit the person closest in relationship. I have in my career encountered hundreds of disappointed expectant beneficiaries – they were disappointed because they expected being next of kin would grant them the right to inherit the assets of a loved one.
Being Next of Kin Does NOT Give You Medical Decision-Making Rights: Without a Lasting Power of Attorney (Health & Welfare), hospitals, social services and other welfare institutions are not bound to follow the wishes of the person who would have assumed they were next of kin. Appeals like ‘but I am their spouse’, ‘I am their child’ or ‘I am their next of kin’ carry no legal weight.
Being Next of Kin Does NOT Give You Parental Responsibility: Guardianship must be established on the death of a parent by the parent’s last will and testament or by order of a court. Being next of kin has no bearing on parental responsibility.
Next of Kin Rights: Medical Decisions
In healthcare and social care, ‘next of kin’ is usually understood as an emergency contact, of the kind once listed on the old-style paper driving licence. If common sense prevailed, that person would be listened to when a patient cannot speak for themselves. As we’ve seen, common sense is not common.
What Next of Kin Can Do: Nothing.
However, a properly appointed attorney using lasting powers of attorney can influence, can opine on, but cannot dictate social care or medical treatment. A person relying on their powers as ‘next of kin’ has no such powers to rely on, because the position does not exist in law, and so has no standing to be heard.
What Next of Kin Cannot Do: Anything. Because the title is empty, no powers are conferred by empty titles.
Not sure where you stand as next of kin?
Being next of kin and having a legal entitlement are two different things, and which one applies to you depends on the estate. Ade will go through it with you.
Next of Kin Rights: Financial Matters
Being next of kin does not give you access to the property, possessions or assets of the person you claim to be next of kin to. Such access may only be granted by lasting powers of attorney.
What Next of Kin Can Do: Nothing. Someone appointed attorney by the powers of the deed of lasting power of attorney may exercise those powers in the interest of the assets holder – but only if they have been so appointed. Handling someone’s property without their express consent, or without the authority of a lasting power of attorney, may be treated as fraud.
What Next of Kin Cannot Do: Anything. As we’ve seen previously an empty title is just that, a title with no powers attached.
Protecting Through LPA (Property & Financial Affairs): This document allows you to nominate someone to manage finances if you become unable to. It is far more powerful than relying on next of kin status.
Next of Kin in Inheritance and Intestacy
When someone dies without a will (intestate), intestacy rules determine estate distribution following the hierarchy above. However, these rules are as inflexible as the laws of nature.
For example, step-relatives inherit nothing. In the intestacy hierarchy, step-siblings, step-parents, and step-children do not inherit anything. This problem is magnified in blended families. There is an Act of Parliament, The Inheritance Act 1975, by which disappointed expectant beneficiaries might apply to the courts if the rules of intestacy did not make reasonable provision for a person who might have relied on the hollow title of next of kin for their inheritance from a person’s estate. Reasonable is like beauty. What is reasonable is in the eye of the beholder.
Why Having a Will Matters: If you died intestate, your assets would be distributed by the inflexible rules of intestacy rather than your wishes. A will allows you to distribute your estate as you’d wish – that way you may leave gifts as you wish to unmarried partners, step-children, friends or charities – this would be impossible under the rules of intestacy.
Blended Families and Next of Kin Challenges
In blended families, ‘Next of kin’, which we must remember is a mere term of art, becomes a source of real problems. Relatives from previous relationships or by co-habitation get zero entitlement by the laws of intestacy. This lack of protection is made worse because it makes no allowance for the length or intimacy of the relationship.
Solutions for Blended Families
Here is how to remove the uncertainty that reliance on the term ‘next of kin’ creates.
Create a Valid Will: By writing a will, you could express your wish. A will states your wishes plainly. With a will you could specify what each member of your family would get. You could explain your reasoning for such gifts. You could name the executors – the people whom you wanted to carry out the administrative tasks related to carrying out the provisions of your will.
Discuss Your Wishes: Every person I’ve spoken to about wills has heard me say: ‘this is what I tell all my clients, let the important people know there is a will, let them know what’s in it, and let them know where to find it’. This is an expansive way of saying: ‘discuss your wishes with your family’. This way, any potential points of contention could be resolved – this would diminish the risk of arguments after your death.
Create Lasting Powers of Attorney:
By creating lasting powers of attorney, you would specify whom you wanted to speak on your behalf.
Complete a Schedule of Assets
A schedule of assets is a list of your assets and where your executors and personal representatives may find them. Here you can address assets which are not directed by your will such as your uncashed or drawdown pensions.
Pay Special Attention to Unmarried Partners
As we have seen, partners outside marriages or civil partnerships have no inheritance protections. The soundest protection you can give them, is to exercise your powers in writing three documents: first your will, then lasting powers of attorney, and a cohabitation agreement. It might be possible that a bereaved unmarried partner could petition the courts under the 1975 Act, but would you rather your assets passed to your nearest and dearest without the excitement and expense of a court case – with all the ill will such action is bound to generate.
Very few families can get by without a will, and I am yet to meet one that has. Blended families do not have the luxury of not having a will. Inadequate as such protections are, intestacy provides slender protections to spouses on the one hand and biological [and adoptive] children on the other. The design of intestacy laws leaves stepchildren and unmarried partners in the cold. Conflicts and arguments are not a matter of if, or even when, but a matter of how bitter and long.
For blended families, having a will is NOT optional. Without one, step-children and unmarried partners inherit nothing, biological children inherit automatically, and conflicts are nearly guaranteed.
Final Thought
Next of kin is a term of art. It has no standing in law and confers no rights. Therefore, you may render the question obsolete by clarifying your wishes. Through a will, lasting power of attorney and discussing your intentions with your nearest and dearest, the power to relieve your family of uncertainty and argument is in your hands.
Want to know what you can actually claim?
What you are entitled to depends on whether there was a will and who else survives. Leave your details and Ade will call to go through it.
Frequently Asked Questions
Can my unmarried partner be my next of kin? As ‘next of kin’ is a term of art rather than a position or office of any significance, the question is moot. You may appoint your unmarried partner as your attorney in lasting powers of attorney, you may leave as much as you wish to anyone in your will, that is your right.
Is “next of kin” the same as “beneficiary”?
No. As we have seen, ‘next of kin’ is a term that has no meaning. A beneficiary is whoever benefits from the estate of a person who has died, usually a person and sometimes a charity.
What’s the difference between next of kin and executor?
Many, including me, say there is no such thing as ‘next of kin’. An executor is an entity, which can either be a person or a firm that engages in the business of being executor, appointed in a will to carry out the provisions of the will.
What if my relative is in a coma with no will or LPA? As the will is only relevant after death, the absence of a will matters not when a relative is in hospital. If a relative were in a coma or otherwise unable to speak for themselves in hospital, only attorneys appointed by a registered lasting power of attorney may be consulted by the hospital staff. The view of anyone else would not be considered, however close the relationship.
Working out the legal next of kin is often just the first step. If you need help administering the estate that follows, our probate assistance service can guide you through the process.