Unlike other countries, such as the USA, the phrase ‘next of kin’ is not legally defined in Australia. So, what does next of kin mean in Australia?
Although not legally defined, it is nevertheless a term that is recognised by the authorities when someone passes away, although there are minor differences from state to state. To help you understand the meaning, including the difference between next of kin and emergency contact, our Wills and estate lawyers have broken it down for you below.
Overview:
- What does next of kin mean in NSW mean?
- Who is my next of kin?
- Next of kin rights and responsibilities
- Next of kin disputes
What does next of kin mean in NSW?
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 in NSW is a person’s closest living blood relative or legal partner. This designation is crucial, as the next of kin holds certain rights and responsibilities, particularly in matters related to death investigations, post-mortem examinations, and funeral arrangements.
The Coroners Act 2009 is significant because it sets out the legal framework for coronial investigations in NSW, ensuring that deaths are properly examined and that families receive fair and transparent processes. It establishes the rights of the next of kin, including the ability to be informed of coronial proceedings, request post-mortem reports, and participate in inquests where necessary. By defining the next of kin in NSW, the Act helps prevent disputes over decision-making and ensures that a deceased person’s closest family member or legal representative is appropriately involved in the process.
What is next of kin order?
The next of kin order refers to the legal hierarchy used to determine a person’s closest living relatives in situations where there is no legal directive (such as a will or power of attorney). This order is important in medical, legal, and estate matters, particularly when a person is incapacitated or deceased.
So, who is my next of kin?
The Act defines the priority order for the closest living relative in this way:
- Spouse or De Facto Partner – Includes legally married and de facto partners.
- Children – Biological, adopted, and legally dependent children.
- Parents – If no spouse or children exist, the parents become next of kin.
- Siblings – Brothers and sisters, including half-siblings.
- Grandparents – If no immediate family is alive, the next level of kinship is considered.
- Aunts, Uncles, and Cousins – Extended family members may be recognised in the absence of closer relatives.
- An executor of the deceased person’s Will.
- A person who was the deceased’s legal representative immediately prior to the death, such as an estate planning lawyer.
The person chosen by this method will be known as ‘senior next of kin’ for the purposes of the Act.
Next of kin rights and responsibilities
When someone dies, there are a number of things that need to be organised, such as:
- Making funeral arrangements
- Notifying family members and friends
- Registering the death with the state government and obtaining the death certificate
- Administering the deceased person’s estate and distributing assets to the beneficiaries
If the deceased person has a Will, the nominated executor will handle the deceased estate administration. However, if the person died intestate (meaning without a Will), the responsibilities fall upon the next of kin, above the age of 18.
Please note: the next of kin can decline to take on these responsibilities, in which case it can pass onto the next in line. They are not bound by law to perform these duties.
In Australian law, the terms executor and next of kin refer to distinct roles, each with different legal responsibilities when handling a deceased person’s affairs. While both may be involved in managing an estate, their duties and legal authority differ significantly.
An executor is a person nominated in a will to administer the deceased’s estate. Their responsibilities include:
- Applying for probate (court approval to manage the estate).
- Distributing assets according to the will.
- Paying outstanding debts, taxes, and liabilities of the estate.
- Managing legal and financial matters related to the deceased person’s assets.
- Handling disputes or challenges to the will.
An executor’s authority is granted by the will and confirmed by the court, giving them legal power to act on behalf of the estate. If the deceased did not leave a will, an administrator (appointed by the court) performs the same duties as an executor.
Unlike an executor, a next of kin does not automatically have the right to manage the estate unless they are named as executor in the Will or appointed as administrator by the court.
Organ donations & post-mortem examinations
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 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.
Next of kin vs emergency contact
More often than not, your emergency contact will be your next of kin (such as your partner or parent), however, there are some core differences between next of kin vs emergency contact in Australia:
The term ‘next of kin’ typically refers to your closest living blood relative or legal partner. In legal and medical contexts, the difference between next of kin and emergency contact is that your next of kin may be contacted in emergencies or when important decisions need to be made on your behalf if you are unable to do so. This could include decisions related to medical treatment, care arrangements, or handling your affairs in the event of your death. Next of kin may have certain legal rights and responsibilities, depending on the jurisdiction and the specific situation.
An emergency contact is an individual you designate to be notified in case of an emergency or if someone has died. Comparing a next of kin vs emergency contact, this person can be anyone you trust, such as a friend, neighbour, or teacher, with the main difference that they don’t necessarily have to be a family member. The primary role of your emergency contact is to receive information about your situation and assist as needed quickly or during emergencies. Importantly, being listed as an emergency contact does not confer any legal rights or responsibilities regarding your medical or personal affairs.
Next of kin disputes
Next of kin disputes are not uncommon, especially when there is no Will or certain family members believe they have not been adequately provided for from the deceased estate. In such situations, it’s always recommended you seek legal advice.
Can next of kin order be overridden?
- A legally appointed executor or power of attorney takes precedence over next of kin in estate and financial matters.
- If a dispute arises, courts can determine the appropriate next of kin based on relationships and circumstances.
Learn more: contesting a Will
Owen Hodge is here to help
Now that you know the answer to ‘what does next of kin mean?’, it’s time to start planning your estate.
The passing of a loved one can be stressful and emotional, especially when there is no Will. That’s why we always recommend you start planning your estate sooner than later, and make sure you nominate an executor and clearly state your emergency contacts and next of kin. With an experienced team of Wills and estate lawyers, Owen Hodge is here to help. Contact us today if you have any questions about your estate plan.