In Australia, there is no legal definition of ‘next of kin‘. However, circumstances may arise where a deceased person’s next of kin will need to make a decision. This most commonly occurs where a person dies without leaving a will or appointing an executor. The next of kin will be responsible for the body of the deceased, including organising a funeral.

Deciding the Next of Kin

Generally speaking, it will be a deceased persons husband or wife, their de facto partner or their parents. Under the NSW Property (Relationships) Act 1984, a de facto relationship is described as one between two adult persons living together as a couple who are not married to each other or related by family. Therefore, this includes same-sex partners.

The NSW Coroners Act 2009 also assists in determining who will be a person’s (senior) next of kin. Where the Coroner is involved and a decision must be made by a deceased’s next of kin, the Coroner will decide who that person is based on an order of priority. First, the deceased’s spouse, then adult children, parents, adult siblings, then lastly any person named as executor under the person’s will, or who was their legal personal representative immediately before death. A spouse also includes a de facto partner.

If the Deceased has a Will and an Executor

Even where a deceased person had a will and appointed an executor, there are some situations where the next of kin will be required to make a decision. For example, under part five of the Human Tissue Act 1983 (NSW) (the Act), an executor does not have the right to make decisions about organ donations and post-mortem examinations. The deceased’s ‘senior next of kin’ must make these decisions. The Act defines ‘senior next of kin’ in a similar vein to the Coroners Act, prioritising spouses, then parents and lastly siblings.

If There is No Next of Kin

When a person dies in a hospital without any next of kin or friends, and no assets, then the hospital takes responsibility for arranging the funeral through a government agency.

If the death occurred at home, once a doctor has issued a medical certificate noting the cause of death, the police organise a burial or cremation of what is known as a ‘deceased destitute person’. They will notify the relevant Director of Public Health, who will then arrange a funeral through a government agency.

For a person who died leaving sufficient assets, the NSW Trustee and Guardian will arrange the funeral and pay for it using money from the deceased’s estate.

Key Takeaways

It is much easier for a family if their deceased family member has left a will and properly appointed an executor. If you do not yet have a will of your own, you should ask your lawyer to write one.

Note: LegalVision is a commercial law firm and cannot assist with family law nor next of kin matters.

Bonnie-Anne Talese
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