Next-of-kin is not necessarily a legal term in Australia: this person may be your closest living blood relative, or relatives, or another person entirely. In the United States next-of-kin is legally defined, and the United Kingdom has no such law.

Australia also has no such law, but there are certain circumstances where it applies, for example in some states in transplants and organ donation, and in cremations and burials.

     Who is my next of kin?

• Spouse or domestic partner
• A child over the age of 18
• Parents
• Siblings over the age of 18

     Who is the next of kin of a child who died?

• A parent
• Brother or sister 18 or older (if parents are not available)
• A guardian who cared for the child immediately before their death (if parents and siblings are not available)

     All states in Australia have limits on how many relatives must be found before calling the search quits:

• 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.)

This means no great aunts or uncles.

     What is next-of-kin supposed to do?
Next-of-kin do not have any legal obligations to a deceased person, but there are some tasks (listed below) that next-of-kin is generally considered responsible for. Next-of-kin do not have to arrange the funeral or anything else (legally), however they do need to provide the personal details of the death within 30 days for death registration. If there is no next-of-kin, anyone who knows the details may be asked to give this information.

     The responsibility of organising a funeral
Sometimes a person may have no-one to arrange their funeral, leaving this task to the executor of the will, if such a person has been nominated. If someone dies without a will, they die intestate, and other formulas are used instead of a will. (What happens if you die without a will ‘dying intestate’.)

The executor, if nominated, has right to possession and custody of the body until it is buried or cremated, and does not have to obey specific directions left in the will. The executor, however, is not able to make decisions about organ donation and post-mortems under the Human Tissue Act 1983 (part 5). This is left to the ‘senior available next-of-kin’.

     Who is responsible for the body?
In the event that there isn’t a will and no executor has been appointed, the next-of-kin is deemed responsible for the body, with that person typically being the deceased’s partner or parents, including same-sex relationships, now recognised as de facto partnerships in Australia. Police may be tasked with finding this person and informing them of the death, however if the next-of-kin isn’t interested in being involved, a government contractor will be arranged.

Once someone dies and all due course has been followed (for example the police and forensics and others have examined the body), a funeral director is chosen by the next-of-kin, and arrangements are made to take the body to the funeral home. The next-of-kin, however, can choose to keep the body at home until the funeral, with some communities preferring to dress and clean the body themselves. This occurs after embalming.

     What if there is no next-of-kin?
If someone dies in hospital or at home and has no next-of-kin to arrange or pay for their funeral, and has no money or other assets, the hospital where they died arranges and pays for their funeral through a government contractor. The police will complete a burial or cremation for a Deceased Destitute Person, commonly known as a Pauper’s Funeral.

If there are money and assets but no next-of-kin, the funeral and other expenses are taken from the deceased’s estate.

Not sure where you stand legally? Ask us for help. Our legal obligations to others can be confusing, and where there is property and other assets, messy family relations and in some cases, nobody left to care, things can get tricky. Find out your legal rights and obligations.

Learn about wills, estate planning and trusts

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