In Australian law, the term ‘next of kin’ refers to an individual’s spouse, de facto partner or closest living blood relative. This term is commonly used in legal documents such as liability waivers and wills.
A person’s next of kin will be notified if anything unexpected happens to them unless the person has provided an alternate emergency contact.
Although Australia doesn’t have a legal definition for next of kin, it’s still a widely used term that has some legal significance.
If you want to know what the purpose of next of kin is, who can be a next of kin, their responsibilities and answers to other frequently asked questions.
Read along!
What is the purpose of next of kin?
The primary purpose of a next of kin is that they are notified first regarding what occurred to the deceased in situations where the deceased individual had failed to create a valid (intestate) will unless they had provided a different emergency contact
Once an individual’s next of kin has been identified, they will be required to arrange the deceased’s funeral and choose what happens to the deceased’s body. In the event that no next of kin can be located or identified, the State will be required to make these arrangements. If a valid will has been created for the deceased, the terms of the will are enforced.
Who can be next of kin?
A person’s next of kin is generally their closest living relative. In most cases, this refers to a person’s spouse, blood relatives or their de facto partner. A deceased person’s relatives that can be their next of kin include the following:
- Parents
- Children
- Spouses
- De facto partners
- Aunts
- Uncles
- Grandparents
- Cousins
Australian states and territories each have their own laws that determine who is a person’s next of kin. For example, in New South Wales, in accordance with the Coroners Act 2009 (NSW) a coroner decides who an individual’s next of kin is on a priority basis. The priority order is as follows:
- Deceased’s spouse (including de facto partner)
- Adult children aged 18 or older
- Parents
- Adult siblings aged 18 or older
- The deceased’s executor under the will
- The deceased’s personal legal representative prior to their death
A next of kin can also be an individual chosen by the coroner on the basis of the deceased’s close relationship with them immediately prior to their death.
Next of Kin: Responsibilities
Although a next of kin doesn’t have any formal legal responsibilities, they will be required to make important decisions under certain circumstances. Some responsibilities of a next of kin include the following:
- Registering the person’s death
- Obtaining a death certificate
- Making funeral arrangements
- Making medical decisions
- Looking after the individual’s financial affairs
- Notifying family members and friends regarding the individual’s death
- The next of kin must distribute the deceased’s estate among their designated beneficiaries
- The next of kin is responsible for the administration of the deceased person’s estate where a deceased person has failed to make a will
Next of Kin: Related FAQs
What does intestacy mean?
Intestacy refers to the state of a person who dies without having created a valid will at the time of their death. Therefore, the individual has died ‘intestate’.
In contrast, if an individual had created a valid will at the time of their death, they would be considered to have died ‘testate’. Therefore their estate can be distributed according to the instructions outlined in their will.
What’s the difference between next of kin and executor?
For individuals who had created a valid will prior to their death, the executor of their will performs the majority of the responsibilities that the next of kin would be responsible for if they hadn’t created a will.
Therefore an executor is a person allocated by the deceased prior to their death who’s responsible for ensuring that the terms of the will are carried out. Whereas a next of kin will only handle these responsibilities in the absence of a will.
What are letters of administration?
Letters of administration are court orders that allow you to administer assets left behind by a person who has died intestate. You must apply for letters of administration if you’re the next of kin of a deceased individual who owned high-value assets. These assets can include a home, land, bank account, shares, or superannuation.
You can also apply for letters of administration if you believe that an individual you don’t trust will also apply and will not administer the deceased’s estate properly.
Conclusion
In summary, a next of kin will be responsible for administering the estate of a person who died without a will (intestate). When an individual dies without a will and no executor is appointed, the asset administration process can become complicated. Therefore, if you don’t have a will, you should hire a lawyer to receive legal advice on how to create one. Alternatively, if you’re the next of kin of a deceased person, you can also speak to a lawyer who can provide legal assistance to ensure you’re able to fulfil your responsibilities.
