Next of kin in Australia: what it means and what rights it gives

What does next of kin mean?

In everyday use, your next of kin is the person closest to you by relationship. For most adults that's a spouse or partner. If you don't have one, people usually mean an adult child, a parent or a sibling.

Hospitals, schools, employers and gyms ask for a next of kin so they know who to call if something happens to you. On those forms it's a contact, not a legal appointment. Writing someone's name there doesn't give them power to make decisions for you or a right to your property.

Does next of kin have legal rights in Australia?

Not as a general status. The law asks a different question in each situation, and the answer isn't always your closest relative. The NSW Civil and Administrative Tribunal puts it plainly: the person who can consent to medical treatment for someone "is not always the patient's next of kin or carer".

Who inherits if you die without a will?

If you have a valid will, it decides who gets your property, whoever your next of kin are. Without one, each state's intestacy law sets an order. Broadly, your partner and children come first, then parents, then brothers and sisters, then grandparents, then aunts and uncles (or their children, your cousins). If there's nobody in those groups, your estate goes to the state.

How much your partner gets, and what happens when there are children from another relationship, varies by state. Our guide to dying without a will explains the order and links each state's rules.

Even with a will, some people close to you can ask a court for a bigger share if they weren't adequately provided for. That's a family provision claim, explained in our guide to contesting a will.

Who can make medical decisions for you?

If you can't make your own medical decisions, doctors need consent from someone with legal authority. If you've appointed someone, that person decides. If you haven't, each state's law sets a list of who can, and they go by different names.

Notice that a close friend or an unpaid carer can rank ahead of, or alongside, a relative. If you'd rather choose, you can appoint someone in advance. Depending on your state that's an enduring guardian, a medical treatment decision maker or an attorney under an enduring power of attorney. Each state and territory government publishes free official forms and guidance. Willies doesn't prepare these documents.

Who arranges the funeral?

Usually your executor does. Under Australian common law your funeral wishes generally aren't legally binding (most states have limited exceptions about cremation), and the executor named in your will (or the person likely to be appointed administrator, if there's no will) has the right to decide how and where you're buried or cremated.

So choosing your executor matters more than who your next of kin is. Pick someone who knows your wishes and will respect them, and write those wishes down. A Willies will can record whether you'd like burial or cremation, where you'd like to rest and what kind of service you'd want. Your executor isn't bound by them, but most people follow clear written wishes.

What does next of kin mean for the coroner?

Coronial law is one place where the term has a legal meaning. If a death is reported to the coroner in Victoria, the "senior next of kin" is the court's main contact, including about early procedures such as an autopsy.

In Victoria the senior next of kin is usually the spouse or domestic partner. If there's no partner, or they aren't available, it's an adult son or daughter, then a parent, then an adult sibling, then an executor named in the will, then a personal representative, and finally someone the coroner decides was closest to the person. The Coroners Court of Victoria notes that this only applies to its own work and doesn't decide beneficiaries for anything else. Other states define the term in their own coronial laws.

Should you list someone as next of kin on forms?

Yes. It's the quickest way for a hospital or employer to reach someone who knows you. Choose a person who answers their phone and knows who your executor and medical decision maker are.

Just remember it's only a contact. If the person on the form isn't the person you want making decisions or handling your estate, the form won't change that. The documents below will.

How do you make your wishes count?

• Make a will. It decides who inherits, names your executor and can name guardians for your children. See how to make a will.
• Choose your executor carefully. They handle your estate and generally decide your funeral arrangements.
• Make a binding nomination with your super fund. Without a valid binding nomination, the fund's trustee decides who gets your super. Some binding nominations lapse after 3 years, so check yours. See binding death benefit nominations.
• Appoint a medical decision maker using your state's official form, so you choose who speaks for you.
• Write down your funeral wishes in your will or a letter of wishes, and tell your executor where they are.
• Keep it current. Review your will after marriage, separation, divorce, a new child or a death in the family.

When you make a will with Willies, the questions cover your executor and a backup, guardians for children under 18, your funeral wishes and whether you've made a binding super nomination. A real person checks every will before it's sent to you to sign.