Next of kin: what it means, and who decides, after a death

Hospitals ask for a “next of kin”, and many people assume this person takes charge when someone dies. In fact, UK law mostly uses other ideas: the executor, the nearest relative, the person who applied for the cremation. This guide explains who has the right to do what after a death, how Scotland differs, and where unmarried partners stand.

Key points

• In England and Wales, next of kin has no general legal definition and gives no automatic powers.
• The executor named in a will has the right to arrange the funeral in England and Wales. With no will, it’s the relative with the best right to deal with the estate.
• Scotland has a legal nearest relative list for funeral arrangements, and cohabiting partners of at least six months are on it.
• Whoever signs the funeral contract pays the bill, though reasonable costs usually come back from the estate.
• Unmarried partners don’t inherit automatically anywhere in the UK if there’s no will.
• A person’s funeral wishes aren’t legally binding in England and Wales, but they are usually followed.

What “next of kin” does and doesn’t mean

When someone goes into hospital, staff usually ask who their next of kin is. The person can name anyone: a spouse, child, friend or neighbour. A University Hospital Southampton NHS clinical law note explains that next of kin is undefined in English law, so the nominee has no powers. Clinicians may talk to them to find out what a patient who has lost capacity would have wanted, but they can’t consent to treatment on the patient’s behalf just because they’re named.

Specific laws each use their own lists instead. In Northern Ireland, for example, nidirect says the person named as next of kin may be asked to formally identify someone who dies in hospital.

A lasting power of attorney gives real authority while someone is alive, but it ends when they die. After that, the executor or administrator deals with their affairs.

Who decides what after a death

For full details on registration, see how to register a death. Since September 2024, a partner of the person who died has been able to register a death in England and Wales.

Who arranges the funeral

England and Wales: the executor comes first

The Law Commission, which is reviewing this area of law, explains the current position:

• Nobody owns a body, but someone has a duty to arrange the funeral and a matching right to possession of the body.
• That duty falls first on the executor, who may be a friend or solicitor rather than family. They can decide what happens even if closer relatives disagree, and courts only step in if they act wholly unreasonably.
• If there’s no will, the right passes to the person highest in the order for dealing with the estate: a spouse or civil partner, then children, then parents, then brothers and sisters, and so on.
• If nobody else will act, the council must arrange a funeral.

In practice, most families agree between themselves, and the executor is often a close relative anyway. If the person left no will, see do I need probate? for how an administrator is appointed.

Applying for cremation is slightly different. The application must usually be made by the executor or a near relative: a widow, widower or surviving civil partner, parent, child or any relative who usually lived with the person. Anyone else can apply only if the crematorium’s medical referee accepts their reasons. The form asks whether any relative or executor objects.

Scotland: the nearest relative list

The Burial and Cremation (Scotland) Act 2016 sets out who may arrange a burial, cremation or hydrolysis. An adult can make an arrangements on death declaration naming the person they want to do it. Otherwise it’s the nearest relative, in this order:

1. Spouse or civil partner (unless permanently separated)
2. Someone who lived with them as if married for at least six months
3. Child (including stepchild)
4. Parent
5. Brother or sister
6. Grandparent
7. Grandchild
8. Uncle or aunt
9. Cousin
10. Niece or nephew
11. A friend of long standing

People on the same level rank equally, and anyone under 16, unwilling or unreachable in time is skipped. Whoever makes the arrangements must consider the person’s known wishes and their religion or belief. For a child under 16, a separate list starts with the parents. If nobody can arrange the funeral, the council has a legal duty to do so.

Northern Ireland

nidirect’s guidance doesn’t set out a legal order for who arranges the funeral. Usually a close relative or the executor does, and it points out that whoever arranges the funeral is responsible for paying the bill. If there’s a disagreement, get legal advice early.

You don’t have to use a funeral director at all. See arranging a funeral without a funeral director.

Collecting the body and the ashes

The body. Hospitals and care homes release the person to the funeral director, family member or other person chosen by whoever is arranging the funeral. If a coroner or procurator fiscal is involved, the body can’t be released until they agree. See what happens to the body after death.

The ashes. In England and Wales, the crematorium must follow the instructions of the person who applied for the cremation. It can release ashes to someone else only in exceptional circumstances. Scotland’s 2016 Act also ties the ashes to the applicant’s instructions. If relatives might disagree about the ashes, settle it before the cremation, because the applicant’s instructions will usually decide.

Who inherits: the intestacy rules

If there’s no valid will, the intestacy rules decide who inherits. These rules say who inherits the estate, not who arranges the funeral, although in England and Wales the same order decides who can deal with the estate.

• Husbands, wives and civil partners inherit first. In England and Wales, Citizens Advice says this applies even if they were separated, but not if they were divorced.
• Children share the rest, or everything if there’s no spouse or partner.
• Then other relatives, in a set order.
• Unmarried partners inherit nothing automatically, in England and Wales, Scotland or Northern Ireland.

Each nation has its own figures and rules. In Scotland, a cohabiting partner can ask a court for a share of the estate if there’s no will, but must apply within six months of the death.

Unmarried partners: where you stand

Living together doesn’t give you the same rights as marriage or civil partnership.

If you live with a partner, making wills that name each other as executor and beneficiary is the simplest way to protect both of you. For England and Wales, SwiftWill has a guide to wills for unmarried couples.

When the family disagrees

Disagreements about funerals, burial or cremation, or ashes are more common than people think. The Law Commission notes that the current law doesn’t make a person’s own wishes binding, and that this can lead to disputes. It is now looking at who should have the right to make these decisions, with recommendations due by 2028.

If you can’t agree:

• start from what the person wanted, if you know
• ask the funeral director or a faith leader to help you talk it through
• try mediation before court
• get legal advice quickly. Courts have said the priority is that the person is laid to rest with respect and without further delay.

Where to get help

• What to do when someone dies, step by step
• How to register a death
• Do I need probate?
• Funeral wishes and your will
• Citizens Advice, or Advice NI in Northern Ireland, for free advice. For disputes about a will, the estate or the funeral, speak to a solicitor.