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Step 6: The Estate, Next of Kin and Important Considerations

A short guide to who can be chosen as next of kin and what their rights and responsibilities are.

Next of kin.

A legal definition of “next of kin” does not exist in Australian law. However, there are various laws which can help determine who is the senior next of kin. These laws vary between Australian States and Territories. You can refer to your local State Public Trustee or legal advisors for more information and to determine what your next steps should be.

A valid up-to-date Will can help ensure your affairs, including your funeral and finances, are looked after the way you want them to be. If you’re separated or divorced from a former partner, an up-to-date Will can ensure your wishes are followed.

If a loved one dies without a Will – they are said to have died intestate. The rules of intestacy will determine who can inherit the estate. The next of kin will usually inherit. Debts and loans owed by the deceased must be paid from the estate before any inheritance is distributed.

Who can be chosen as next of kin?

When a loved one dies without a Will and no executor(s), generally the next of kin is the person’s spouse, de-facto partner, adult children and then parents. In certain other circumstances, and where there is no valid Will and executor, the law may have to determine next of kin.

There are some decisions the executor(s) or administrators cannot make. For example: An executor cannot make decisions about organ donations and post-mortem examinations. This is something only the next of kin can do.

Of course, you can appoint your next of kin as your executor(s) in your Will documents.

What are your rights and responsibilities as next of kin?

You assume an executor-style role, but you do not legally have to take on the role and responsibilities, which include:

  • Registers the death once a doctor has supplied the Certificate of Death. You can see Westpac’s comprehensive Bereavement guide (PDF 632KB) on what to do following the loss of a loved one. Or the Federal Department of Human Services guide.
  • Applies for any certified copies of the Death Certificate. You will need these when you are finalising your loved one’s affairs. For example, completing Notice of Death forms for the transfer of property owned or where the deceased is a joint tenant, or to close bank accounts. See Guide to letting others know (PDF 88KB).
  • Organises the funeral or memorial, usually with the help of a funeral director. For more on funerals and memorials and what to do, see Making funeral or memorial arrangements.
  • Provides details of death within 30 days to, for example, the person’s bank, and other institutions that may require it. This can include club memberships, superannuation funds, relevant Federal and State Government departments, such as the ATO, Veteran Affairs; utility providers, mobile phone, etc.
  • Closes bank accounts and wraps up any financial affairs, such as mortgages, term deposits, superannuation, tax returns, etc. Here’s what to expect when you notify us about the loss of a loved one.
  • Obtains Probate of the Will or Letters of Administration and collects and distributes the estate to the beneficiaries stated in the Will or according to rules of intestacy.

What if you don’t have a next of kin?

Having a Will and appointing an executor, someone who can look after your affairs and funeral, is important. Always check first with the person you want to appoint as your executor(s), in case they don’t feel they can do it.

If someone dies in hospital and there is no Will, family, or discoverable next of kin, the hospital will arrange a funeral (cremation or burial) via a government contractor. If a person dies at home and after a doctor issues a certificate of death, the police will notify the relevant Director of Public Health, who will then arrange a funeral through a government agency. If you have no eligible relatives and no Will, your estate will pass to the State. (Check the laws in your State or Territory. Of course, outside of Australia, the laws may be very different.)

See here for how to create your estate plan, which includes your Will.

Recommended Reads Section 

Beginning the conversation

Death is something we’ll all experience, but it’s still a largely taboo subject in the Western world. Avoiding the discussion risks compromising the chances of our legacy being honoured the way we want it. 

Caring for carers

It’s important that carers have the right resources, support services and financial ability to remain attentive. If you are a carer, it is essential that you prioritise your wellbeing too and ensure that you have sufficient relief to avoid exhaustion.

Create your support team

Surrounding yourself with the right people can make a real difference to improving your quality of life. Speaking to others who are in a similar situation as you, may help you get answers to the questions you’re most worried about.