In Australia there is no legal definition of “next of kin”, however, circumstances may arise where a deceased person’s next of kin will be required to make a decision – most commonly, where a person dies without leaving a will or appointing an executor. The next of kin will be deemed responsible for the body of the deceased, including organising a funeral.

Who Will be 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 him, 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. Spouse here also includes a de factor partner.

What 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. Under part five of the Human Tissue Act 1983 (NSW) for example, 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 noted above, prioritising spouses, then parents and lastly siblings.

What If There is No Next of Kin?

If a person dies in a hospital without any next of kin or friends, and no assets, then (if the Coroner is not involved), 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 would organise a burial or cremation of what is known as a ‘deceased destitute person’, notifying 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

In summary, 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 get in touch with your lawyer has arranged to have one written.

LegalVision can assist you with preparing all of your important Estate documentation, including your will. If you would like to get started, get in touch with us today.

Bonnie-Anne Talese

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