The Australian law does not specifically define the term “next of kin.” However, we generally use the term to refer to a person’s closest living relatives. A relative can play an important role in family law matters, such as:
In this article, we will discuss the role of a relative in family law matters in Australia. We will provide a step-by-step guide on how to determine who is a person’s next of kin. Additionally, we will discuss the legal rights and responsibilities of kinsmen/kinswomen in family law matters.
Responsibilities of Relatives or Next of Kin
Relatives play a vital role in family law matters, particularly when a person dies without a valid Will. In such cases, the next of kin may be responsible for:
1. Arranging the Funeral: Kinsmen/kinswomen are typically responsible for making funeral arrangements and ensuring that they lay the deceased person to rest according to their wishes or cultural and religious practices.
2. Administering the Estate: If the deceased did not leave a valid Will, the next of kin may need to apply for Letters of Administration. This grants them the legal authority to administer the estate. Applying for Letters of Administration also enables them to:
- Identify and value assets;
- Pay debts; and
- Distribute the estate according to the laws of intestacy. Intestacy laws applies if a person dies intestate (dying without a Will)
3. Making Decisions on Behalf of the Deceased: In certain situations, a kinsman/kinswoman may need to make decisions on behalf of the deceased, such as:
- Medical decisions;
- Handling the deceased person’s affairs or the deceased person’s estate; or
- Decisions regarding the care and custody of minor children.
Identifying the Next of Kin
The seniorioty of next of kin varies from state to state across Australia. While there is no formal legal recognition or rights associated with next of kin, the following hierarchy is commonly used to determine the order of priority:
1. Lawful Spouse or Domestic Partner: The deceased person’s spouse or domestic partner of the deceased is typically considered the first in line as the next of kin.
2. Adult Children: If the deceased did not have a spouse or domestic partner, their adult children are usually next in line.
3. Adult Grandchildren: In the absence of a spouse, domestic partner, or adult children, adult grandchildren may be considered.
4. Parents: If the deceased did not have a spouse, domestic partner, adult children, or adult grandchildren, their parents may be recognised as the kinsman/kinswoman.
5. Siblings: In the absence of the aforementioned relatives and family members, siblings or their adult children may be considered since they are the closest living blood relative.
6. Remoter Next of Kin: If no closer relatives exist, more remote next of kin such as uncles, aunties, or cousins, may be recognised as the next kinsman/kinswoman.
It’s important to note that the order of priority may vary slightly between states and territories in Australia. Additionally, authorities will have to assess the closeness of the next possible relative’s relationship with the deceased person immediately before his or her death. Therefore, it is advisable to:
- Consult the specific laws of intestacy in your jurisdiction; and
- Determine the exact order of priority of a deceased person’s closest living relative.
Relevant Acts in Each State
There are relevant laws and legislations about next of kin in Australian family law matters. These laws provide a useful guide in determining who qualifies as next of kin in Australia. Some of the relevant Acts and legislations include:
- The Succession Act 2006 (NSW)
- The Administration and Probate Act 1958 (VIC)
- The Administration and Probate Act 1919 (SA)
- The Administration Act 1903 (WA)
- The Administration and Probate Act 1935 (TAS)
- The Administration and Probate Act 1969 (NT)
- The Administration and Probate Act 1929 (ACT)
Changing the Next of Kin
Can a person change their next of kin? The concept of next of kin is based on blood relation and legal relationships such as marriage or domestic partnership. It is not something that can be changed or altered by an individual.
However, individuals can legally name other people as decision-makers or appoint representatives. They may do so with legal documents such as powers of attorney or advanced health directives. People who posess these powers can make decisions on behalf of their nominator in specific situations.
These legal documents allow individuals to designate someone they trust to act on their behalf. However, they do not change the fundamental concept of next of kin.
What if There Is No Next of Kin?
In the event that there is no next of kin, the process of administering the estate can become more complicated. The following steps may be taken to determine who should be responsible for administering the estate:
1. Public Trustee: If there is no next of kin, the Public Trustee may be appointed to administer the estate. The Public Trustee is a government agency that provides trustee and executor services to the public
2. Letters of Administration: If there is no next of kin and no Will, the court may appoint an administrator to manage the estate. This involves applying for Letters of Administration, which grants the administrator the legal authority to administer the estate
3. Distribution of Assets: In the absence of a valid will, the distribution of assets will be determined by the laws of intestacy in the relevant state or territory. This means that the assets will be distributed to the deceased’s closest living relatives in a specific order of priority.
It is important to note that the process of administering the estate can become more complicated in the absence of a valid Will or next of kin. Seeking legal advice from a qualified professional can provide further guidance and clarity on the specific steps that may need to be taken in your situation.
Our Family and Estate Planning Lawyers
Are you unsure who is the next of kin of a person who has died? What if there is no next of kin at all? In such circumstances, it is important to seek legal advice from a family lawyer. A family lawyer can help you to navigate the complex legal process of determining next of kin, and can ensure that your legal rights and responsibilities are protected.
JB Solicitors is a family law firm with years of experience in family and estate planning matters. We have a team of experienced lawyers who can help you with all aspects of next of kin matters, including:
- Identifying the next of kin
- Determining the legal rights and responsibilities of next of kin
- Enforcing the rights of the person determined to be the next of kin
- Negotiating with other parties who may be interested in the person’s estate
- Representing you in court if necessary
Do not hesitate to contact us today if you have more questions about family and estate planning matters.