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Who Has Final Say On Funeral Arrangements

When a family member passes away, planning their funeral can be a cathartic process, providing an opportunity to celebrate their life and memory. Funerals bring friends and family together to support each other and process the emotions associated with the death. Putting together a funeral can be time-consuming and expensive, and the person in charge often has to mediate conflicting opinions on what should happen and when the funeral should be held. When there are disputes over how to say goodbye to someone, or where the testator’s last instructions conflict with the family’s wishes, the question becomes: who has the final say on funeral arrangements?

Determining Who Has Final Say On Funeral Arrangements

When a person dies, someone must make the funeral arrangements, even if this consists only of appointing a funeral director to make the decisions. It is not unusual for family members to have different opinions and this can lead to acrimonious disputes. For instance, if the deceased had a current partner and an adult child from another relationship, it would be understandable if both parties felt entitled to make the decisions about the funeral. However, in this case, both parties would be wrong.

The deceased’s executor has the right to make all decisions about their funeral and burial arrangements (though the executor does not make decisions in relation to cremation). In fact, making funeral arrangements is one of the first duties that an executor must carry out. This underscores the importance of locating the will swiftly to ascertain whether the deceased left instructions about their funeral. It is also best practice for a testator to inform their named executor of these wishes so that if there is any delay in finding the will, the executor knows what those wishes were in time to plan the funeral.

The executor is responsible for choosing the date, location and type of funeral and can restrict the guest list as they think appropriate. It is ultimately up to them whether they take account of the family’s wishes on these matters.

In fact, the executor is not even required to follow the instructions that the testator left in their will. Legally, it is up to the deceased’s executor or personal representative to make decisions about their funeral and burial, although executors often feel morally bound to follow the testator’s wishes. Whether the executor will in fact be able to follow the testator’s instructions, however, may well depend on the practicality of carrying them out, the cost, and whether they are contrary to law.

Who Has Final Say On Funeral Arrangements: Cremation Exception

If a testator has left instructions in their will that they want to be cremated, this instruction must be followed. This has been specifically legislated in some states. For instance, the Queensland Cremation Act 2003 states that a personal representative is bound to follow the instructions of the deceased where they have nominated cremation or given contrary instructions. When a person is cremated, whoever applied to the crematorium has legal custody of their ashes. If the applicant was the deceased’s personal representative, then they have the final say on where the ashes should be stored, whether they are scattered in a particular location or distributed to family members.

Who Pays For The Funeral?

The deceased estate must bear all the costs associated with the deceased’s burial or cremation and funeral or wake. There are several options for the payment of these costs upfront. The personal representative can pay the costs and later be reimbursed or the family can pay the costs and be compensated. These reimbursements are considered liabilities on the estate and are paid prior to any other debts. The representative can also use money from the deceased’s bank account if the bank gives permission. If there are no readily available funds, an application can be made to the state government or Centrelink for financial assistance.

Attendees At The Funeral Or Burial

The deceased can include in their will the guest list that they would like for their funeral, but these wishes are not legally binding. The legal representative may choose the attendees, however, it is difficult to restrict access to a funeral that is held in a public location. If the testator has expressed a specific wish to exclude a person from their funeral, a private funeral held on private property is likely to be the best approach.

Disputes over testamentary or funeral arrangements do common and can escalate into costly litigation. If you require legal advice or representation in relation to this situation or in any other legal matter, please contact Go To Court Lawyers.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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