Next-of-kin in Victoria are determined by civil law rules of distribution (See the Administration and Probate Act). Victoria used to be the only state that didn’t place a limit on next-of-kin, meaning there was no end to the number of relatives who could be hunted down when trying to find someone to take care of the funeral and inherit the estate. It also meant you – yes you – could pose as some long-lost relative or loved one, and sneak in there when there was nobody else.

If you are not sure who the next-of-kin is or want legal inheritance dispute support and representation, contact lawyer Vanessa Ash.

     All states (now Victoria too) have the following limits:

• First cousins of the deceased (a child of the deceased person’s brother or sister)
• Issue (children, grandchildren, great-grandchildren) of first cousins of the deceased (first cousins once removed, first cousins twice removed, etc.)

     What happens to someone’s belongings if next-of-kin cannot be located?
Limiting next-of-kin in this manner means that more bona vacantia (unowned ‘stuff’) gets passed on to the state as revenue. All states impose these limits, and according to statistics provided by the State Trustees, only five per cent of next-of-kin are more remote than first cousins.

Also important is that if a more remote relative was excluded from inheriting an estate due to being further than a first cousin, and the estate went to the state as bona vacantia, this person can petition the Minister for Finance for provisions to be made from the estate, or if the deceased was responsible for them, a court order in that vein.

The argument for providing limits on next-of-kin in Victoria was that it would reduce costs and delays in trying to locate remote relatives, and enable clarity in legislation. It would also make Australia consistent across all states, so there was no confusion when it came to people dying in different states than the next-of-kin may be, owning property in other states, or any variation on the interstate theme that may cause conflicts.

     New legislation enacted in 2012 – 2016 – you may need legal advice, as the rules changed
In 2014 a bill was introduced into Parliament, two parts that came into effect on 30 October 2014. The remaining provisions of the came into operation on 1 July 2015.

New legislation affects the family provision claims, rules regarding payments of debts to an estate, administration of small estates, and amendments to the court authorised wills scheme.

Other amendments have been made in relation to surrogacy law. In November 2016, further reforms based on recommendations were added, in the areas of intestacy, executors‘ fees, and ademption. These changes mean when someone dies without a will, their partner will gain a greater share of the estate to ensure they are provided for. It also offers some safeguards to prevent estates being used up in executors’ fees.

If you need help clarifying who is yours or someone else’s next of kin, call lawyer Vanessa Ash for a free chat about your circumstances.