What does Next of Kin mean in Australia?

What does Next of Kin mean in Australia?

Author: Ian Aldridge, Progressive Legal

next of kin

Under Australian law, the legal definition of “next of kin” does not exist. However, it is determined by referring to the closest living blood relative or spouse of an individual. This will be the person to be contacted in case of an emergency and will carry out all legal decisions, make funeral arrangements, and manage the estate of the deceased. While in other countries, the significant other may be the person lawfully recognised, instead of the parent or child of the deceased, to take over responsibilities like making medical decisions. 

The order of determining the next of kin is usually as follows: 

  • Spouse or de facto partner 
  • Eldest adult child 
  • Parents 
  • Siblings (over the age of 18) 
  • The executor of your will 
  • A personal representative of the deceased 
  • An individual identified by the coroner. 

The legal rights and responsibilities are as follows: 

  • Registering the person’s death 
  • Notifying family members 
  • Making funeral or burial arrangements 
  • Writing an obituary or death notice 
  • Organising their financial affairs 
  • Managing the estate of the deceased 

If you were contacted even when the person is still living, you may be entitled to make the following decisions: 

  • Legal decisions 
  • Medical decisions 
  • Financial decisions 

In most instances, the deceased should have a valid will and testament in place, but the laws of intestacy will require the next of kin to serve as the personal representative of the deceased and assume most of the financial and legal obligations if there is none. The last will and testament are important as it will enclose the appointed individual who will assume all the responsibilities and make the decisions on behalf of the departed. 

Additionally, if there is a valid will, all property, assets, and debt will be passed on, managed, and finalised by the executor(s) who will start by applying for Probate. Receiving the grant will entitle the executor to access remaining bank funds, Superannuation payable to the estate, and real estate titles. Applying may be different for all Australian states and may take weeks. 

If there is no will, the next of kin will apply for Letters of Administration which is the court order that will allow administering the properties, assets and sometimes, debt. There is specific legislation for each Australian state. 

Based on their credentials, experience, and close ties to the deceased, the Court will appoint a person as the next of kin to carry out the circumstances specified in the will. 

If the next of kin cannot be located, a government agency will arrange for their funeral. 

If the death took place in a hospital, the facility would oversee making funeral arrangements with the help of a government contractor. 

If the incident happened at home, the police would arrange the burial or cremation once the medical certificate has been issued by a doctor. Consequently, they will have to then, notify the pertinent Director of Public Health who will handle funeral arrangements through a government agency. 

If you need advice on Next of Kin matters, contact your local law society or legal center.

*NB// The contents of this article are information only and should not be relied on as legal advice. Please seek specialist legal advice in relation to your particular situation.

(c) Progressive Legal Pty Ltd – All legal rights reserved (2023)

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