Legal Obligations of the Designated Next of Kin – The Deceased Lived Overseas

Question

I find myself in the position of Next of Kin to handle the arrangements for my estranged father. He passed away in a South East Asian Country where he was a permanent resident.

I was contacted by the U.S. Embassy there first. He has another child in the US. Attempts to contact them over the last week, mine and those from the Embassy, have not yielded results. My final option is to inform them via mail.

Information:

• The Embassy required I fill out an affidavit for surviving Next of Kin.
• The deceased lived from Social Security.
• It does not appear that he left a will, or named an Executor.
• I have no financial interest in his estate. I will not make a claim.
• I am being encouraged to move forward with his funeral arrangements.
• He has a friend there who wishes to handle his cremation and funeral, whom I want to authorize to do so.
• I do not have contact to his friend. The friend contacted the Embassy.

The closest question I found was this one. The question assumes not handling any arrangements as Next of Kin which is opposite to mine.

My questions are:

• What are my legal obligations as Next of Kin when placed in the position to make decisions?
• What are some of the potential legal issues that can arise from the situation?

Thank you in advance.

Update:

I have yet to submit the affidavit, which still needs to be notarized. I was in the process of doing so when I felt the need to ask for advice. I was not originally going to do it, but the Consul officer stressed the issue for several days and trivialized it to funeral arrangements.

• What will happen if I do not submit the form DS5511 now?
• Can I be forced to take care of my father's affairs if my sibling refuses?
• Do I need to take further steps to protect myself?

Answer 1

You have no legal obligations, until you accept them. Generally speaking, your obligation will be to settle the debts and similar obligations of the deceased and distribute the remaining assets to those entitled to receive them, and to authorize disposal of the body. The details depends on what assets exist and where they exist. For example, there is potentially a small lump sum death benefit from Social Security, which means dealing with the US government, but let's say there is a bank account overseas (in Thailand, to pick a specific country), then you have to navigate Thai law to gain access to the account and distribute the assets. You would be responsible for filing the final US income tax return for the deceased.

The risk is that in accepting the position of administrator of the estate, you may become responsible for your errors. There is typically a procedure, set by law (local law, not a general international law) whereby you advertise that X has died and creditors must present their claims in a certain fashion – you have to know what those requirements are, otherwise you might become liable for unpaid debts. The rules of intestate succession in Thailand are different from the rules of intestate succession in North Dakota. The procedure for proving that you are next of kin may be burdensome in Thailand, e.g. you may have to travel to Thailand to prove to the court that you are next of kin. In Thailand there is an ordering: descendants, parents, full blood brothers and sisters, half-blood brothers and sisters, grandparents, finally uncles and aunts, and the estate goes entirely to those in the highest category. However, a spouse inherits 50% of an estate before anyone else.

In general, your ignorance of the law presents a risk to you. However, that risk may be mitigated by limits on a creditor (for example) to get a judgment against you. The standard advice "hire a lawyer" applies.

Answer 2

None

Next of kin have no legal obligations in common law countries. They have a right to be informed but no obligations.

The laws that apply to your father’s estate will be the laws of the country where he lived and died. You haven’t identified that country so we can’t say if their law imposes obligations on the next of kin. Notwithstanding, since you are not subject to their jurisdiction, the law, whatever it is, doesn’t apply to you.

Answer 3

It seems as if you are being asked to taken on some of the responsibilities that normally fall on the administrator of the estate, such as making funeral arrangements.

I do not know of any US law under which a person can be required to do this. Even when the deceased names a person as executor, or a judge names a person as administrator, that person is free to decline, or to later resign.

You might well want to, or at least be willing to, take on these limited responsibilities. That is a valid choice. But it is a choice, not a legal requirement.