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?
Can I take legal action over funeral arrangements?
Generally funeral wishes expressed in a Will aren’t legally binding. Decisions on funeral arrangements including date, location and guest lists, are the responsibility of the deceased’s legal representative. We often find close loved ones become very upset when they are told they cannot make the final decision on funeral arrangements and that they cannot challenge the decision at court.
The terms of a will, such as how the estate’s property is divided, may however be contested through legal action. There are strict time limits which apply to contesting wills and eligibility criteria, so you should seek legal advice from a Wills & Estate expert as soon as practicable.
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 (or the person entitled to be appointed administrator), 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 and this is the first estate liability to be paid.
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 prevents unwanted family from attending a funeral service.
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.
What happens if there is a dispute over funeral arrangements?
Experiencing the passing of a loved one is traumatic, especially when there’s conflict about their funeral arrangements or estate. If you believe your loved one’s wishes aren’t being carried out, or their assets are being distributed differently than you would have thought, you may need to contest their Will.
Our lawyers are experts in Wills & Estate Law and can help you understand your legal rights when it comes to your loved one’s estate. Our Will dispute services are provided with a No Win No Fee Guarantee*, so you won’t be left out of pocket.
Contact us online to arrange a free, no obligation consultation to discuss your legal options.
Written by Shine Lawyers. Last modified: April 8, 2021.