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Wills & Probate
The Wills and Probate team at Poole Alcock often speak to people who have questions about who is the ‘Next of Kin – sometimes after someone has died, or sometimes when a loved one is nearing death. But the definition and use of ‘Next of Kin’ might not be quite what you think, and knowing who the ‘Next of Kin’ is important when decisions need to be made.
A ‘Next of Kin’ refers to a person’s closest living blood relative or closest relationship. People often use this phrase when they mean to refer to someone’s ‘Personal Representative’ once they have died – ie the person entitled to make decisions and deal with that person’s affairs.
In many cases this is a spouse (i.e someone related by marriage – e.g. a husband or a wife) or the person’s children. Often this is someone who visits you in hospital or the person who is informed when you have died.
You can nominate someone to be your ‘Next of Kin’ – but, strictly speaking, this is not a legally binding nomination. There is no ‘Next of Kin’ status determined in UK law, and the specifics of determining ‘Next of Kin’ and what their rights are to decision making and inheritance etc vary by jurisdiction.
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Identifying a ‘Next of Kin’ is less significant (legally), if the person who has died left a Will or was married. A legally and professionally executed Will covering inherited property takes precedence over Next of Kin rights. It is important to note that it is the Executor appointed under the Will that has the legal right to distribute the estate in accordance with the terms of the Will.
If a person dies without leaving a Will then their estate will pass under the rules of Intestacy. These rules may not include the person’s chosen ‘Next of Kin’: Importantly – if you have a partner that you are not married to – they are NOT legally entitled to act as your ‘Next of Kin’ once you have died.
However, if you are married, your spouse is your ‘Next of Kin’ for the purposes of dealing with your affairs.
This is the case even if you are separated from your spouse but not yet legally divorced. Therefore it is essential that, if going through a separation, you also arrange to make a Will to ensure that your soon to be ‘ex-spouse’, is not able to act as your ‘Next of Kin’ if you die before your divorce finalised.
For single people (including those who are widowed or divorced), your next of kin may be your children, or if you have no children, then your parents, or if they have died before you, then your siblings – ie your nearest living relatives. When a person has died leaving children as their ‘Next of Kin’ – there is often a misconception that the eldest child has a priority in being the ‘Next of Kin’ – this is not the case – all children are equally entitled to be ‘Next of Kin’.
When someone is still alive:
We know that a ‘Next of Kin’ might need to make medical decisions whilst a person is in hospital, and often the hospital will ask a patient who this is when they are admitted.
However, it is always recommended that a Lasting Power of Attorney be in place to ensure your wishes can continued to be followed in all circumstances.
Being nominated as ‘Next of Kin’ does not give you any particular decision making power for the person. This can only come from a legally prepared and properly registered Lasting Power of Attorney.
What you will need will of course depend on the circumstances, but in many chases you will need to show that:
If you (for instance) don’t want your children to make decisions for you while you are alive, or when you have died you should:
If you want to have more information about ‘Next of Kin’, or about whether you have legal standing in dealing with someone’s affairs, contact Poole Alcock for a free, no obligation consultation with one of our friendly and expert solicitors in this field by calling 01270 613939 or complete a contact form here and we will contact you back.
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