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Who has the final say when making funeral arrangements?


Written by:
Connie Arundel
Solicitor

Following the death of a loved one, funeral arrangements must be made. During such an emotional time, a funeral home can often be faced with different family members providing conflicting instructions as to the funeral arrangements. So who does have the final say when making these arrangements?

Who should the funeral home be taking their instructions from?

The legal personal representative, whether this be an executor appointed under a Will or an administrator of an estate, is responsible for making the necessary funeral arrangements for the deceased.

Attending to the funeral arrangements is one of the first tasks for the legal personal representative. Whilst the deceased’s Will may provide non-binding guidance about their funeral arrangements, it is recommended that individuals make their personal representative aware of their funeral arrangement wishes outside of their Will. This could be through a letter, funeral plan or talking about the often avoided topic of death.

It should be noted that in Queensland (with other states and territories having similar legislation), if the deceased has left signed instructions that they wish to be cremated, the legal personal representative must ensure that the deceased is cremated. In this circumstance, the deceased’s wishes must be followed. Ultimately, the legal personal representative has the final responsibility and authority when making the funeral arrangements. It is at the legal personal representative’s discretion as to whether or not they take into account any input from the deceased’s family and friends.

Can I make funeral arrangements without the legal representative?

Circumstances can arise where funeral arrangements have been made by the family and friends of the deceased, without involving or notifying the legal personal representative. This approach should be taken with caution as the legal personal representative may overrule the respective arrangements.

Who is legally responsible for the funeral costs?

The deceased estate (which includes the property and assets of a person who has passed away) is legally responsible for the payment of all funeral costs, including burial, cremation or other legal disposition costs and expenses such as food at a funeral or similar service. If there are sufficient funds in the deceased’s bank account, these funds can be used to pay the funeral costs once the bank’s requirements to do so are met.

In the event that the estate does not have enough funds to pay for the funeral and there are no family members who can contribute, depending on the circumstances, Centrelink or other State Government allowances may be applied for to provide financial assistance.

It’s important to note that if someone else other than the estate pays the funeral costs, they are entitled to be reimbursed by the estate.

Are funeral wishes in a Will legally binding?

The funeral wishes of the deceased as stated in a Will are not legally binding, meaning the legal personal representative is not legally bound to follow them. The wishes may very well be able to be carried out, however factors including the following will play a role in determining what ultimately takes place:

  • The cost to carry out the wishes
  • The practicality of carrying out the wishes
  • The law regarding the wishes

Overriding all of this is the fact that it is the legal personal representative who will have the final say in the funeral arrangements.

Can you legally stop someone from attending a funeral?

The deceased can leave wishes regarding who is to attend their funeral, however these wishes are not legally binding. It will be at the discretion of the legal personal representative to determine whether someone is prevented from attending a funeral, and how they will go about it. There is currently no legislation that enables someone to be stopped from attending a funeral.

If a private service is held in a private location then there is greater control over who can access the premises. It is more difficult to control access to a funeral service held in a public location.

There are recent COVID-19 restrictions that have limited the number of persons that are allowed to attend a funeral. Whilst this decision has been very difficult for families to contend with, the legal personal representative will ultimately have the power to determine those who will attend a funeral in person and those who will not.

Who has rights to ashes after cremation?

After cremation, the ashes are the responsibility of the person who applied to the crematorium to have the deceased cremated. If the legal personal representative of the estate made the application for cremation, they will have control of the ashes. If another person such as a family member of the deceased made the application, they will have control of the ashes.

How Shine Lawyers’ Wills & Estates team can help

Experiencing the passing of a loved one is traumatic enough. To safeguard against unnecessary conflict that can arise from planning a funeral, it is important to appoint a legal personal representative who you can trust to understand your final wishes, and have them carried out.

Having an up-to-date, legally valid Will that reflects your wishes is also of great importance. We are experts in Wills and Estate Law, and we can assist you in preparing or updating your Will to ensure your loved ones are provided for in future. Through our dedicated Wills service for clients, you can speak directly to one of our friendly legal experts about your situation.

To find out more, and to begin the process of preparing or updating your Will, contact us today.

Written by Connie Arundel. Last modified: June 4, 2020.

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