Why a Testator’s Next of Kin Matters in Probate

Dictionary Series: Probate

If you are the personal representative of a testator who left behind a Will, you may believe that all you need to do is follow your loved one’s instructions. However, Florida probate law also gives specific rights and responsibilities to the testator’s next of kin. This applies both in a guardianship filed while the person is alive, and in the administration of their estate after their death.

Who Are Your Legal Next of Kin?

When you think of your “next of kin” you probably think of your closest family, and you would generally be right. The legal term “next of kin” only officially applies in the context of guardianships. However, it is defined the same way as “heirs of law” under the Florida probate code. In both cases, a person’s next of kin in Florida are their:

  1. Current spouse
  2. Children, grandchildren and great-grandchildren (biological and adopted)
  3. Parents and grandparents
  4. Siblings, nieces, and nephews
  5. Aunts, uncles, and cousins

When determining a person’s next of kin or heirs at law, the petitioner (in guardianship cases) or personal representative (in estate administration cases) must investigate both sides of the family tree. Heirs can be from both the maternal and paternal family lines.

However, in defining your next of kin, you do need to be careful. Godparents, fictive kin (non-biological “cousins”), and children whose paternity has not been established can sometimes believe themselves to be next of kin when in fact, they have no direct rights to a deceased’s estate under Florida probate law. However, the law does have a process for children born outside a marriage to establish paternity as part of a probate case.

Next of Kin in Guardianship Cases

As a person’s next of kin, you may be entitled to seek a guardianship if your loved one becomes physically or mentally incompetent to handle their own affaris. Next of kin can petition for a guardian to be appointed. They are among the list of people the Florida probate court will consider when choosing someone to care for a minor or incapacitated adult. Because of this, anytime a guardianship proceeding is filed, the person’s next of kin must receive notice before the capacity hearing is held.

Florida Probate Rights and Responsibilities for Heirs at Law

When a person dies, the personal representative must send notice to each of the decedent’s heirs at law. This is true even if there is a valid Will, and even if the heirs are not in it, or are directly cut out of the Will. That is because a testator’s heirs at law are the ones who would inherit his or her property if there was no valid Will. In other words, they are the people with something to gain from challenging a Will. If they aren’t told about the testator’s death, and the estate administration proceedings in probate court, their intestate rights could be extinguished without their having a say. Essentially, heirs at law have the:

  • Right to notice of important steps in the Florida probate process
  • Responsibility to file a timely Will challenge if they believe the Will is invalid
  • Right to petition to remove a personal representative if they breach their fiduciary duties

How to Prove You are Next of Kin in Florida Probate Court

Proving that you are a testator’s next of kin starts with establishing your family tree. You and your Florida probate attorney will need to connect the dots between you and the testator using:

  • Birth certificates
  • Marriage certificates
  • Death certificates
  • Religious ceremony records (such as baptism records)

If you are further down the list of the testator’s next of kin, you will need to show that there is no one in the categories above you. Any intestate interest you have will also be divided among each person on your level of intestate succession. For example, if you are the testator’s niece, it will be up to you to prove:

  • That your uncle was not married when he died (or that his spouse died too);
  • That your uncle did not have any living children, grandchildren or great-grandchildren when he died;
  • That your grandparents and great grandparents (on your uncle’s side) have already passed;
  • Your own parent (your uncle’s sibling) has passed

At that point, you would be considered your uncle’s next of kin along with your siblings, any of your uncle’s other siblings, and any other nieces and nephews whose parents had passed before the testator.

Get Help Proving You are the Testator’s Next of Kin

Understanding Florida’s probate laws and asserting your rights as a testator’s next of kin isn’t easy. It often involves tracking down decades old records, and sometimes requires court-ordered DNA testing. However, if you believe you have been improperly excluded from a Will, or it was entered based on undue influence, establishing your rights as an heir of law may be worth the work. At Harrison Estate Law, P.A., our experienced estate and probate team can help you investigate your family lineage, gather the proof you need, and assert your rights as next of kin. We will help you be sure your family members are provided for after a loved one’s death. Contact us here or call 352-559-9828 to get help today.

Categories: Estate Planning, Probate