Next Of Kin: What Does It Mean In Family Law Matters?

Being the next of kin (the closest relative) can be a good thing in family law matters. It's not specifically defined in Australian law, but it is generally understood to refer to a person's closest living relatives. A kinsman or kinswoman can play an important role in family law matters, such as:

• Child custody and access, as they can become legal guardians for children.
• Beneficiaries or inheritance rights
• Superannuation since the closest relative can receive a death benefit if they were listed as a dependant of the deceased.

As we can see, relatives, children, and spouses have rights to inherit property, and we can only expect a lot of things to happen during this instance. If tension is already present in some families, they will have issues with inheritance matters.

So, as a next of kin, how can we quell such disputes?

Identifying the Next of Kin

The senior next of kin varies from state to state across Australia, but it's usually a family member who's recognised. This can be someone who was married to the deceased, lived as a partner of the deceased, or the deceased's father, mother, son, daughter, or siblings.

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 is typically considered the first in line as the closest relative to receive inheritance

2. Adult Children: If the deceased did not have a spouse or domestic partner, their adult children are usually next in line as the next kinsman

3. Adult Grandchildren: In the absence of a spouse, domestic partner, or adult children, adult grandchildren may be considered a kinsman

4. Parents: If the deceased did not have a spouse, domestic partner, adult children, or adult grandchildren, their parents may be recognised as a kinsman

5. Siblings: In the absence of the aforementioned relatives and family members, siblings or their adult children may be considered a kinsman since they are the closest living blood relative.

6. Remoter Next of Kin: If no closer relatives exist, next of kin, such as uncles, aunties, or cousins, may be recognised as the next of kin.

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 kinsman'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.

Responsibilities of a Next of Kin: Will and Estate Law Matters

A kinsman plays a vital role in family law matters, particularly when a person dies without a valid Will (dying intestate). In such cases, the closest legal relative may be responsible for:

1. Making funeral arrangements and ensuring that the deceased person is laid to rest according to their wishes or cultural and religious practices.

2. Applying 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 apply if a person dies intestate (dying without a Will)

3. 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.

Is It Possible To Change the Next of Kin?

The concept of next of kin is based on blood relation and legal relationships such as marriage or domestic partnership. However, in certain situations, some people may nominate a close friend or a neighbour as their next of kin.

However, individuals can legally name other people as decision-makers or appoint representatives. They may do so, like a legal document, such as a power of attorney or advanced health directives. People who possess 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?

If there is no closest relative to inherit a deceased's assets, 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: Distribution of assets without a valid Will 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 the rightful next of kin is to a person who has died? What if there is no surviving relative at all? If these are questions that revolve around your head, it is important to seek legal advice from a family lawyer. A family lawyer can help you navigate the complex legal process of determining next of kin and 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.