Next of Kin: An Explainer (2021 Update)
A person's next of kin is their closest living family member who may assume certain responsibilities if something unexpected happens. Find out more here.
The term ‘next of kin’ refers to a person’s spouse, de facto partner or closest living blood relative. This term is often used on legal documents such as liability waivers and wills. A person’s next of kin will be notified if anything unexpected happens (unless alternate emergency contact information is provided). Where a deceased person has failed to make a will, their closest living relative will need to administer their estate.
While some countries such as the United States have legally defined Next of Kin (NoK), other countries such as the United Kingdom and Australia have not. Despite this, it’s still a commonly used term that does carry some legal weight.
There are multiple situations where a next of kin may need to make an important decision. Often, they will be the first to be notified if something happens to you (unless you list a different emergency contact).
If someone dies without having left a valid will (intestate), the next of kin will first need to be identified. After this, they will need to arrange the funeral and determine what happens to the body. If no next of kin can be located, the State will need to make these arrangements. Where a will has been made, the terms of the will are enforced.
Intestacy is the term for the state of a person when they die without having made a valid will. Further, if someone dies ‘intestate’, it means that they did not have a valid will at the time of their death. Conversely, if someone dies having made a valid will, they are deemed to have died ‘testate’ and their estate can be distributed according to their wishes.
Next of kin versus executor
For someone who has a valid will at their time of death, the executor of the will will assume most of the above responsibilities. An executor is the person who is responsible for ensuring that the terms of the Will are carried out. A next of kin will only take care of these matters when there is no will.
Who can be next of kin?
A person’s NoK is their closest living relative. This usually applies to blood relatives, spouses and de facto partners. Examples of relatives that can be next of kin include parents and children, spouses and de factor partners, aunts and uncles, grandparents, and cousins.
Despite having no strict legal responsibilities per se, a person’s next of kin may have to make some decisions when certain situations arise. Each state in Australia has its own laws that regulate the determination of a person’s NoK. For example, in New South Wales, it is the Coroners Act 2009 (NSW). Under this act, a Coroner will decide the NoK on a priority basis. The order is as follows:
- deceased’s spouse (including de factor partner),
- adult children,
- adult siblings,
- executor under the will or deceased’s personal legal representative before death.
A person’s next of kin will have to do certain things in certain situations. Some of these include:
- Registering the person’s death
- Making funeral arrangements
- Making medical decisions
- Looking after financial affairs
- Notifying family members
Letters of Administration
Letters of Administration are court orders allowing you to administer assets left behind by a person dying intestate. If you are the NoK of a deceased person and they died intestate while owning high-value assets such as a home, land, bank account, shares, or superannuation, then you must apply for a Letters of Administration.
You may also wish to apply if you are worried another person may apply and you do not trust that they will administer the estate satisfactorily.
A Next of Kin will be responsible for administering the estate of a person who died without a will (intestate). When one dies without a will and no executor is appointed, the process of asset administration is more complex. Therefore, if you do not have a will, it is important you seek legal assistance to write one. Likewise, if you are an NoK of a deceased person and are unsure of how to proceed, Lawpath can connect you with a Wills and Estate lawyer.
Nina is a Paralegal working in our content team, which aims to provide free legal guides to facilitate public access to legal resources. With a passion for copyright law, her research focuses on small businesses, and how they can navigate convoluted legal procedures.