A DISCUSSION OF LAW AND JOURNALISM

Taylor Swift’s “Next of Kin” Doesn’t Fly

By Asher Hawkins 

A small plane piloted by a Canadian amateur aviator crashed at a Nashville airport in late October. That, in itself, was not national news.  But when word spread that Michael Callan, the 45 year old pilot, had listed songstress Taylor Swift as his “next of kin” in documents on file with his flying club, media across the globe became interested, fast.

According to The Tennessean, which has spearheaded media coverage of the story, Ms. Swift has denied even a passing acquaintance with Mr. Callan. The fatal crash made for great press fodder due to unanswered questions surrounding the pilot’s possible criminal record, and his unusual flight path across half of middle-America. Unwittingly, journalists covering the story also touched on another mystery: the precise meaning of the phrase “next of kin.”

As LASIS will explain, the phrase “next of kin” is a whole lot more than just the title of Patrick Swayze’s most underrated action film—it’s also an important term of art in trusts and estates law, with complex connotations regarding how a person’s assets are divvied up upon his death, and how much red tape is in store for those who stand to receive a portion of those assets.

There are two kinds of dead people: those who have executed a will prior to death, and those who have not.

Historically, the phrase “testament” referred to a document describing how a person wanted his or her personal property—as opposed to real estate—to be disposed of at death. Nowadays, the term “will” sufficiently describes the document setting forth instructions for the divvying up of all property, both real and personal.

A person who has been left real property under the terms of a will is a “devisee” (with “devise” referring to what a will does when its language results in transfers of land, buildings, etc.) The corollary term with respect to personal property is “legatee” (with “bequest” and “legacy” as synonymous nouns used to refer to the specific property being transferred to a legatee under the terms of a will).

Note the historical vocabulary’s compartmentalization between assets that are land-related and those that are not permanently fixed in one place. While land was until relatively recently the main source of personal wealth, today’s elite might be just as likely to have much of their wealth concentrated in stocks, bonds, and other types of non-real-estate property.

When a person dies without having executed a will, he or she has died “intestate.”

In English-speaking countries, local statutory laws—e.g., at the state level in the United States—dictate how an intestate decedent’s assets are divvied up. Historically, those who received an intestate decedent’s real property were generally known as “heirs,” while those who received the person’s personal property were his or her “next of kin.”

Let’s look at the intestacy-statute structure in the Canadian province of Ontario, which reportedly was Mr. Callan’s home jurisdiction. (Especially when it comes to ancient areas of the law such as trusts and estates, most U.S. state law tracks the “common law” originally developed in ancient England. French-speaking jurisdictions follow what is known as the “civil law” tradition, which has its own estate-law peculiarities—in Louisiana, for example, it is far more difficult than it is in the rest of the United States to disinherit one’s children.)

According to Ontario’s intestacy statute, the assets of an intestate decedent who has died without any “issue” would go to his parents—and if one parent is dead, then the living parent would receive all of the recently departed’s assets. The reports on Mr. Callan’s death state that his two sisters are his legal “next of kin.” Under Ontario law, an intestate decedent’s assets would go to his siblings if he died without any issue and was not survived by at least one parent. But like most intestacy statutes, Ontario’s creates some interesting wrinkles: for example, if Mr. Callan was survived by two sisters, but had had a third sibling who died before him, that third sibling’s children would be entitled to a share of Mr. Callan’s assets. And if Mr. Callan had a long-lost half-sibling—even one whom he’d never met—that “half-blood” sibling would be entitled to as great a share of his assets as would be his sisters.

As these hypotheticals show, there’s a good chance that the average person on the street would not be able to accurately name his or her “next of kin” for legal purposes. (In addition, there’s an interesting linguistic feature of Ontario’s intestacy statute that renders technically incorrect the recent news reports’ references to Mr. Callan’s sisters as his “next of kin”: that phrase, as it is employed in the Ontario intestacy statute, appears to refer to relatives other than parents, brothers/sisters, and nieces/nephews. For example, the statute provides that a decedent’s property will “escheat”—become property of the state—when he or she dies intestate and is not survived by a “spouse, issue, parent, brother, sister, nephew, niece or next of kin[.]”)

Even if you know enough about estate law to avoid incorrectly using its various terms of art, and have the foresight to prepare a validly executed will, there are a number of reasons why it’s a bad idea to list as a beneficiary a celebrity you’ve never met before. .

Many estate-law statutes mandate that individuals who might even potentially receive the assets of a recently deceased person must be provided with all sorts of legal paperwork regarding court-overseen handling of the decedent’s estate. In LASIS’s home state of New York, for example, anyone who is even “allegedly entitled to share as a beneficiary” of the typical estate is a “person interested” who must at least be served with the first set of court papers filed following death. Generally speaking, the attorney handling the estate’s administration will avoid such service-related burdens by contacting the estate’s adult-age interested persons and asking them to sign a waiver.

So let’s say you are a fortysomething man who happens to be a massive “I Knew You Were Trouble” fan—and you list its chanteuse, Ms. Swift, as a beneficiary in your will. After you die, the attorney handling your estate will have to expend much time (and the estate’s assets) in either effectuating service upon Ms. Swift, or in attempting to liaise with Ms. Swift’s people regarding her possibly signing a waiver (or both). As this process unfolds, money that could’ve otherwise gone to your friends and family or a charity of your choosing will effectively go to waste.

It might make a heck of a good story in the press, though.

UPDATE: December 3, 2013:  One of NYLS’s  sharp-as-a-tack estate law professors, William LaPiana, pointed out that we incorrectly described, at the bottom of this post, the New York probate procedures governing the  testamentary gift to what Prof. LaPiana calls a BDCM (“big deal celebrity of the moment”).

Someone named in a will as a beneficiary but  not entitled to a share of the decedent’s estate pursuant to New York’s intestacy statute—typically, a friend or distant relative—doesn’t actually need to be personally served with the first set of court papers filed post-death. Generally speaking, such a beneficiary is only entitled to a “notice of probate” under New York law. These notices can be mailed. Still,  the notice-of-probate process is not without administrative hassles: for example, as explained in the leading treatise on New York estate law, “[t]he original notice must be filed in court with an affidavit of mailing signed by the person who mailed it.”

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