What are the Rights & Responsibilities of the Next of Kin in Australia?

In the sudden death of a person where a person passes away without a Will (intestate), their close family members are granted authorization to administer the estate of the deceased. The Court grants letters of administration to the next of kin in Australia, giving them the rights and responsibility to manage the deceased person’s estate. Now you may wonder, who is the Next of Kin in Australia, and what does this term mean?  

Who is the Next of Kin in Australia?

There is no legal definition of the next of kin in Australia. The next of kin usually is the closest living relative of the deceased person. The next of kin in Australia usually refers to the spouse, de facto partner or the closest blood relative of the deceased. 

The term is usually used in estate planning documents such as Last Will & Testament. The next of kin of the deceased is usually the first person to be notified about the death. There are certain rights and responsibilities that the next of kin must perform after the demise of their dear one, such as managing the estate, performing funeral services, etc. So, how is the next of kin determined? 

Order of the Next of Kin in Australia 

In Australia, the following is the legal order of the most senior next of kin:

• Spouse or Domestic partner,
• Eldest surviving adult Son or Daughter,
• Parent of the deceased,
• Adult sibling

Apart from the above representatives, if the deceased left a will with an appointed executor or a legal representative, they are next in the order of the next of kin. 

Responsibilities of the Next of Kin:

The following are some of the responsibilities of the next of kin after the demise of the deceased person:

• Taking decisions regarding organ donation or post-mortem examination 
• Informing family and friends 
• Registering for death 
• Providing details of death within the first 30 days 
• Applying for the death certificate
• Arranging Funeral
• Managing the financial liabilities
• Administering the estate of the deceased person
  

Among the many responsibilities, applying for a grant of Letters of Administration to the Court for administering the deceased’s estate is a crucial step.  

Applying for letters of administration

A Letter of administration is a court order that allows an administrator to distribute the assets of the deceased person who died intestate. Letters of administration with a will annexed imply that a deceased person left a will; however, some circumstances are preventing the execution of the will. A beneficiary named in  a will may apply for letters of administration to the Court if one of the following conditions has occurred:

1. There is no executor named in the will
2. Executor died before the deceased or before applying for probate
3. An executor has renounced probate
4. An executor is unable or unwilling to act, or
5. An executor is outside Australia and has appointed the beneficiary as their attorney).
   

The following are the steps an administrator may perform while applying for letters of administration:

• Publishing ‘Notice of Intended Application’

An administrator first needs to publish a notice of intended application online before applying for letters of administration. For publishing such notice, you will require the following details:

1. the full name of the deceased
2. the last address of the deceased
3. the death certificate
4. an address
   

The publication of the notice of intended application is a public record and is a crucial step. After the publication of the notice, there is a waiting period of up to 14-15 days before making an application for letters of administration. 

• Making an application for letters of administration

You can apply for the letters of administration online, for which you will require the following documents to be submitted to the Court:

1. Summons for Letters of Administration (or Letters of Administration with the Will Annexed)
2. Draft Grant for Letters of Administration (or Grant for Letters of Administration with the Will Annexed)
3. Affidavit of the Applicant for Administration (or Affidavit of the Applicant for Administration with the Will Annexed)
4. Inventory of Property
5. Original will (if you are applying for Letters of Administration with the Will Annexed)
6. Death Certificate of the deceased.

• Requisitions from the court

If your application is incomplete, you may receive a requisition order from the court explaining the problem with your application. In this case, you can either re-file a form or file a separate affidavit answering the requisition and attach a copy of the same to your affidavit.

If all documents in your application are found right during the assessment, you will receive the grant of letters of administration from the Court, following which you can administer the estate of the deceased. 

FAQs:

1. What is the difference between Next of Kin and Executor?

An executor is named in a will and is granted probate (upon careful assessment) by the Court to administer the estate of the deceased person. However, if a person dies intestate (without a will), the next of kin of the person administers the estate of the person. The next of kin could be the spouse, de facto partner, or the closest blood relative. 

1. What is Probate?

Probate is a court order made by the Supreme Court of NSW which confirms that the will of the deceased is valid and gives permission to the executor to distribute the estate as described in the deceased person’s will.

For more queries regarding – what is probate and how to apply for probate, contact Probate Consultants @  1300 561 803 and speak to an expert.