Next of kin – what does it really mean when someone dies?

Our team of contentious probate solicitors often receive calls from people who were named as the deceased's next of kin during their lifetime and are therefore confused about what role, if any, they have in dealing with the deceased's estate.

This is understandable. If someone has been chosen as the deceased's next of kin, they clearly played an important role in that person's life. However, it doesn't necessarily mean that the same person will have a role in dealing with the deceased's estate.

The term 'next of kin' is typically used when the details of someone who can be contacted in an emergency are needed. For example, in a medical setting, someone may be asked to name a next of kin. However, this is not in itself an 'official' or 'legal' appointment or role. Moreover, it does not continue after the deceased's death.

What happens when a person dies?

After someone has died, the people with authority to make decisions about the estate will be the executor or executors named in the will, assuming they made one. If they didn't, the people with authority will be those who have first refusal to apply for a Grant of Letters of Administration under the Intestacy Rules. It will be these people who are responsible for ascertaining what assets and liabilities the deceased had, paying any taxes, applying for the Grant, gathering the assets, and ultimately distributing them.

But often people are concerned not only about who will deal with the deceased person's estate. In the immediate days following someone's death, the main concern is typically who will organise the funeral. It is a common misconception that the deceased person's immediate relatives, which would most likely include their next of kin, have an absolute right to organise their funeral and take custody of their ashes (if they were cremated). But this is not technically correct. Again, it is the executors — or those who have first refusal to apply for a Grant of Letters of Administration — who have authority to arrange the funeral and decide what should happen with the deceased's remains.

In the majority of cases, the deceased will have chosen the same people as their executors as they chose as their next of kin. Even if they didn't make a will, given that the Intestacy Rules aim to ensure that a deceased person's closest relations benefit from their estate, the next of kin will often be among the first to apply for the Grant of Letters of Administration. However, this is not always the case.

It is sadly not uncommon for people who were named as next of kin during the deceased's lifetime to learn that they have no legal authority once that person dies. For example, an unmarried couple may very well name each other as next of kin. However, unless they have made legally valid wills appointing each other as executors, the survivor will have no legal authority over the estate of the first to die. This can be a very difficult pill to swallow, especially if the surviving partner does not have a good relationship with the people who have legal authority over their estate. Whether it be professionals who the survivor does not feel are acting as they should, adult children from a previous relationship, or even a previous partner that the deceased was still legally married to at the time of their death, it can cause real tension.

Being a next of kin does not, in itself, give someone the right to make a claim against the estate or challenge the validity of a will, but it may be that they have some ability to make a claim based on other factors.

Depending on the circumstances and who they are (in terms of their relationship to the deceased), the next of kin may well have some ability to claim against the estate. For example, if they were in a relationship with the deceased for a number of years and they were being maintained by the deceased in some way (for example, living in their property without contributing financially), they may be able to make a claim against their estate under the Inheritance (Provision for Family and Dependants) Act 1975. This wouldn't necessarily mean they would obtain control of the estate, but it may mean they receive a portion of it. Alternatively, if the property that they lived in as their home was in the sole name of the deceased, but they have contributed towards the upkeep/renovations etc. they may be able to claim that they have gained an interest in the property, or that they acted to their detriment in reliance on a promise made by the deceased that they would inherit a share in the property, such that they should receive a share.