In Australia, a next of kin is broadly defined as the closest living blood relative or someone who has a close relationship with the deceased. They are usually the first person notified when the individual dies, unless the deceased has a will and has appointed an executor, or a different emergency contact has been provided. The most common examples of a next of kin include the deceased’s spouse, de facto partner or closest living adult relative.
When someone is appointed as the next of kin, they are known as the senior next of kin. This means they will inherit the main responsibilities associated with the role and will be the main point of contact in regards to any processes involved in carrying out the necessary next steps. It is important to recognise that each state in Australia has minor differences when identifying who the next of kin is.
Essentially, when a person dies, the next of kin is identified and assigned certain roles and responsibilities in dealing with the deceased’s estate. An estate is all the money and property that the deceased owns upon their death. Interestingly, the next of kin is not legally recognised in Australia, meaning anyone who is appointed as a next of kin does not legally have to accept the role. In this case, the next suitable next of kin will be identified. In other countries such as the United States, a next of kin is legally recognised and inherits the legal responsibilities.
The legal order of priority used to identify the next of kin is as follows:
- Spouse or de-facto partner (same sex couples included)
- Adult children of the deceased
- The deceased’s parents
- Adult siblings (the eldest sibling takes priority)
- Any person who was a representative for the deceased immediately before death
- A person selected by the coroner
Roles and responsibilities of a next of kin
When a person is appointed as a next of kin, there are certain responsibilities that they need to carry out on behalf of the deceased. The main responsibilities include:
- Notifying friends and family regarding the death
- Arranging the funeral
- Registering the death and providing details to authorities within 30 days of the death. Examples of authorities include banks, utility providers, and State and Federal departments such as the ATO
- Finalising the financial affairs of the deceased
- Distributing the deceased’s estate to the selected beneficiaries
What does it mean when a person has died ‘intestate’?
The term intestate refers to a person that has died without a valid will. In this case, the rules of intestacy will determine the next of kin. The legal order referred to previously is used as the framework to identify the next of kin.
In a situation where a person dies in a hospital without a valid will, and a next of kin cannot be identified, the hospital will assume responsibility of arranging a funeral. Standard practice requires the hospital to contract a government service to assist in the funeral procedure.
If a person dies in their home under the same circumstances (no will and no discoverable next of kin) and has no assets to distribute, a doctor will issue a cause of death certificate and the police will notify the relevant Director of Public Health who will arrange a funeral through a government agency.
If a deceased person has no valid will or eligible next of kin, the State will be entitled to the whole of their estate.
What happens when there is a will?
If a person has a valid will, normally they will appoint an executor to the will. In this case, the executor overrides almost all responsibility that would be given to the next of kin. The executor carries out the responsibilities requested in the will, as well as any other affairs required including:
- Protecting the assets of the deceased
- Ensuring the estate is distributed accurately to the beneficiaries
Only in specific circumstances will the next of kin supersede an appointed executor of a will. Related examples of when this might happen include:
- Organ donations
- Post-mortem examinations
A next of kin is a person who is the closest blood relative of the deceased or is someone who has a close relationship to the deceased. If a person dies without a valid will, the rules of intestacy will identify the next of kin. The next of kin will be appointed to carry out responsibilities such as notifying family and friends, arranging the funeral and finalising financial affairs.
If the deceased person has a valid will upon their death, the appointed executor to the will has the responsibility to protect the assets and distribute the estate to its beneficiaries.
Having a will makes the process of organising a funeral, distributing any assets, and taking care of other administrative processes easier and more transparent for all parties involved.