What does it mean?
Unlike other countries, such as the USA for example, the phrase ‘next of kin’ is not legally defined in Australia.
Nevertheless, it is a term that is recognised by the authorities when someone passes, although in Australia there are even minor differences from state to state.
In NSW, the Coroners Act 2009 provides clear guidance as to how a next of kin is determined. In general terms, a next of kin is a person’s closest living blood relative or legal partner. The Act defines the priority order in this way:
- Spouse – this includes a de facto partner
- Adult children
- Adult siblings
- An executor who is nominated in the deceased person’s Will
- A person who was the deceased’s legal representative immediately prior to the death
The person so chosen by this method will be known as ‘senior next of kin’ for the purposes of the Act.
So, what happens?
When someone dies, one of the first things to occur is that a doctor will issue a death certificate. This happens whether the person has died at home or in hospital. Either way, the doctor or the hospital will take ownership in advising appropriate people.
This will be:
- A nominated emergency contact
- An executor who is nominated in the Will
- The next of kin
When a person dies with a valid Will, it is termed dying ‘testate’, and an executor will be nominated in the Will. There are several duties carried out by executors – detailed in other articles – but essentially:
- Advising relatives and friends of the deceased
- Locating the Will and actioning its instructions
- Making funeral arrangements
- Distributing a person’s estate in accordance with the Will
There may be other aspects such as insurance coverage, superannuation and so on to be dealt with, but the intent here is to describe the general order of duties.
When a person dies without leaving a Will, and therefore, without having nominated either an executor or beneficiaries of the estate, it is called dying ‘intestate’.
The importance of this is that all the duties that would normally be handled by the executor, now fall to the next of kin, above the age of 18.
However, even where an executor is in place, there are some decisions that only the next of kin can make. The Human Tissue Act 1983 NSW (no, we didn’t make that up) states that an executor cannot make the following decisions, and they must be made by the next of kin:
- Organ donations
- Post-mortem examinations
It is possible, of course, that the deceased has been proactive enough to leave official direction regarding organ donations, and these wishes need to be respected. However, if no such direction has been provided, then it falls to the next of kin to make such decisions.
There are circumstances where a person may die in hospital with no Will, no relatives, and no assets. The details of that situation are beyond the scope of this article, but there are procedures in place for the hospital to deal with the Director of Public Health to make necessary arrangements.
The death of someone close is stressful enough without having to deal with an unnecessary bureaucratic nightmare.
It is vital to have properly crafted and signed Wills, with appropriate nomination of executor. Likewise, details of emergency contact and next of kin should be clearly recorded.
Estate Planning – don’t put it off. It will be easier with sound legal advice from the experts. Owen Hodge Lawyers, we are here to help. Contact us today if you have any questions about your estate plan.