What are the rights of the next of kin in an estate?

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What are the rights of the next of kin in an estate?

My daughter, who is 19, lost her father 8 months ago. He had a girlfriend but was not legally married to her; my daughter is his next of kin. What rights does she have? Is she automatically in charge of the estate? His girlfriend and family are keeping my daughter out of the loop on everything and won’t even give her something small of his to remember him by I have heard they

have hired an estate attorney but can they even do that if my daughter is next of kin. She had to give permission for the Medical Examiner to release him and for the funeral home to do his funeral service so why is she now being kept out of the loop and what can she do to change it? Oh and her father was not worth a penny. He has substantial debt and does not own much as far as assets other than a car.

Asked on March 16, 2019 under Estate Planning, Delaware

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

If there no will, the girlfriend would not inherit; girlfriend is not a legal relationship and conveys no rights. And if there was no will, then the girlfriend would not be the executor (in charge of) the estate, for the same reason. If there was no will, your daughter would inherit and would likely be named the personal representative (the equivalent of the executor, when there is no will) if she asks the court for that role.
On the other hand, if there was a will, then if the will leaves things to the girlfriend, she will inherit, and if the will named her the executor, she will be. There is no inherent right for a child to inherit or be an estate's representative; it depends on whether there is a will and what it says.
If your daughter believes that there is no will or that there is one but the girlfriend is violating its terms, she can bring a legal challenge in court and can seek, among other things, to be named the personal representative. But this is not an easy challenge for a nonlawyer: it is much more procedurally complex than, say, a small claims case. It would be difficult and time consumming for her to bring without an attorney (if she wants to try, she should be able to find some instructions and resources from the probate court, either online or from their clerk's office) and expensive if she hires a lawyer. If there is no money but rather considerable debt, it is questionable whether it is worthwhile to bring a legal action.


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