What is an Affidavit of Next of Kin?
The Affidavit of Next of Kin form is a legal document used to formally declare the relatives of an intestate deceased person. It is an important document in the context of inheritance and estate administration.
Under the Administration and Probate Act 1929 (SA) – s 65 and s 66 – the assets of a deceased person can be distributed without the formalities of Grant of Probate to persons entitled as "next of kin". The definition of this term has been expanded in the recent amendments to the rules of court, and can now be a spouse or child, or alternatively "a parent, sibling, half-sibling, niece, nephew (not being a nephew or niece of the whole blood, a grandchild not being a grandchild of the whole blood) or grandparent, aunt or uncle (whether full-blood or half-blood)".
In these circumstances, the Affidavit of Next of Kin form is normally lodged with a District Court requirement only .
Normally the form includes:
(i) details of the deceased, including date, place and cause of death;
(ii) details of the next of kin which may be the spouse or partner, children, parents, and in the above definition may also include brothers, sisters, half-sisters, nieces, nephews, grandchildren, grandparents, aunts and uncles;
(iii) the deceased’s final arrangements;
(iv) a list of persons who may have a claim against the estate; and
(v) a declaration by the person filing that he/she has made all reasonable and proper inquiries into the existence of persons who would have a claim against the estate.
The District Court may give the permission for a grant of letters of administration for the deceased’s estate upon being satisfied that either i or ii above has been met.
Although the Affidavit of Next of Kin form is a very important legal document, if done competently, the process to obtain the grant of letters of administration is a relatively low cost and low risk procedure. It is key however that the right person is filing the affidavit. The District Court is far more likely to accept the Affidavit if it is filed by a close living relative of the deceased.
Who Requires an Affidavit of Next of Kin?
The Affidavit of Next of Kin form is a legal document that can only be effective if the person dies without a will or where there are no readily apparent heirs at law. So, the Affidavit is typically required in these two situations:
Situation 1: The Person Dies Without a Will
The worst case scenario is for a person to die and leave behind assets without a will. This can trigger the need for the Affidavit of Next of Kin if the deceased person previously owned property that he or she left no instructions regarding. If there was no will made by the deceased person, then the executor of the estate is missing and a person will have no way to collect the assets by undergoing the normal process of probate. In this situation, the Affidavit of Next of Kin can be used where there is not will, no executor and no valid beneficiary designations on assets owned by the deceased. The purpose of the form is to collect the assets that are NOT passed by the will of the deceased and collect those for the next of kin. Assets Commonly Passing Through Affidavit of Next of Kin:
Situation 2: The Person Dies With a Will, but No One Will Act as the Executor
In some cases, a person dies and names an executor in his or her will. However, when the person named in the will comes forth to qualify as the executor, he or she quickly finds out that the decedent died with too much debt and no assets. In this case, the named executor simply does not want to serve as the executor of the will, thus triggering the need for the Affidavit of Next of Kin to collect the assets of the estate without going through formal probate. This would typically happen for a parent of a deceased child, sibling of the deceased or a parent of the deceased who does not want to go through formal probate.
Affidavit of Next of Kin Form: Essential Components
Essential Elements of the Affidavit of Next of Kin Form
The Affidavit of Next of Kin form contains nine distinct sections:
- Name of deceased.
- Social Security number of deceased.
- The name of the affiant – person signing document
- The relationship of the affiant to the decedent, in this case the next of kin.
- The affiant’s state of residence.
- The relationship of the affiant to the heir at law. Heir at law is the beneficiary of the estate that would inherit if the decedent left no will. The code references a class of individuals entitled to receive an estate in the absence of a will or living trust.
- Entry identifying the heir at law.
- Identification.
- The signature of the affiant before a notary public.
How to Complete an Affidavit of Next of Kin
The Affidavit of Next of Kin is a legal document that allows family members of a deceased person to manage their loved one’s estate without going to probate court. Filling out the form and submitting it to the Department of Health is the first step in the process, but to ensure accuracy and legal compliance, you should follow the steps below when filling out the form:
1. Enter the Deceased’s Full Name
One of the first things you’ll need to do when filling out the form is identify the deceased person. To start, write in their full name as it appears on their birth certificate. If you don’t have that, use their driver’s license or state ID.
2. Social Security Number
The next thing you’ll need to provide is the deceased person’s Social Security number. Be sure that it is clearly legible.
3. County of Death
Be sure to include the city and county the deceased died in, as well as the time and date of death.
4. Your Information
The Affidavit of Next of Kin is a legal document that will be signed by the next of kin (usually a spouse, parent, adult child or sibling). Make sure to include all of the required information about yourself, including your full name, address, Social Security number, relationship to the deceased and signature.
5. Individuals You Are Related To
You’ll also need to list other individuals you are related to (i.e. the deceased’s relatives). Include their names, relationships to the deceased, and addresses. It is a good idea to include other siblings or adult children’s information so that the state knows the deceased had no other relatives who could handle their estate.
6. Physician’s Information
Because the next of kin proceeds can only be used to cover the funeral home bill, it’s important to note the reason for the death. You will need to provide the name and address of the physician who signed the death certificate.
7. Notarized Signature
Once you complete the form, you’ll need to sign it in the presence of a notary. A notary can often be found at a bank, real estate office or legal office.
Affidavit of Next of Kin: Legal Implications
It should never be forgotten that an Affidavit of Next of Kin is a legal document sworn before a lawyer with the threat of perjury. The Affidavit of Next of Kin is an essential document in obtaining a Grant of Probate. Therefore if the Affidavit is inaccurate or misleading, the potential consequences can be serious. In cases where the deceased’s Will is more valuable than the estate (for example when most of the assets are held in Superannuation) an Affidavit of Next of Kin will be taken on face value , however it is still important to be as accurate as possible. The Supreme Court may still require a corroborating letter in relation to the Affidavit of Next of Kin so that the Court have an avenue to check the information provided (eg a letter from the Funeral Director). In errors or inaccuracies relating to an Affidavit of Next of Kin could lead to the Court not making a Grant of Probate. Therefore a person completing an Affidavit of Next of Kin should be completely honest as to their relationship to the deceased, as well as being accurate about any or all of the other people qualified to submit an Affidavit of Next of Kin.
The Affidavit of Next of Kin is a legal declaration and as a result, it is inadvisable for a person to complete this document without receiving some form of legal advice in relation to the document and its implications. A solicitor can help with explaining the Affidavit of Next of Kin and the legal consequences of signing the document.
Where to Get the Form
The Affidavit of Next of Kin form is a commonly used document in legal proceedings related to the administration of deceased estates and may be obtained from various sources. A simple online search can lead you to many websites that house the form and make it available for download. These forms are often provided by government bodies or organizations with a vested interest in ensuring the orderly handling of estates, such as an Office of Vital Statistics or Vital Records Office.
In addition to legal forms websites, the Affidavit of Next of Kin form may also be sourced directly from your local court’s website. The probate division of local courts often provides free access to these and other forms, along with information on how, when, and where to file them. It is important to ensure that you are using the correct version of the form for your jurisdiction, as some states and counties maintain their own probate court systems which result in subtle variations to the form.
Your attorney can also provide you with the Affidavit of Next of Kin form. Your legal counsel should be a font of knowledge not only on where to find necessary forms, but also on how to complete them correctly and in a way which best serves your interests in the context of the estate being administered. Even if you decide to complete the form without legal representation, it is always wise to have an attorney review the document before filing to spot any potential issues that may cause unnecessary delays or rejections.
Common Mistakes to Avoid
There are several common mistakes that can lead to the rejection of an Affidavit of Next of Kin or the granting of a funeral permit. It’s important to know what these errors are so you can avoid them.
Some of the most common mistakes include:
Names must be spelled correctly. Check with the deceased person’s family and official documents to verify all names are spelled correctly. This is one of the most common reasons for rejection of a form.
All signatures must be on the affidavit. No matter how you feel about the person, their signature is required. You can attach another/addendum form if necessary. It’s better to get the signature than to risk the failure of the form.
Date the document appropriately. It seems like an easy thing to do, but many times the date on the affidavit does not match the date it is submitted. Envelopes with date stamps or computer generated time/date stamps are not acceptable as a replacement .
Make sure to identify the affixors as either "witnesses" or "affixors." Applicant funeral directors and everyone else must sign as "witnesses," while the affixors must sign where the Affidavit has a line for "affixors." Under the rules, "affixors" must sign the document. Failure to properly designate an affixor will result in rejection of the document. The exceptions to this are when the deceased is a veteran or is involved in a medical examiner case.
Word is not law! You can use either official forms (with the embossed seal) to submit your application for a funeral permit or you can type the Affidavit on a computer using one of the many programs available for download. Once you place the state official seal in the corner, your document qualifies as a statutory form. It doesn’t matter that there is no official "stamp." The Affidavit typed on a computer program and stamped properly is an official document.