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Who Has Final Say On Funeral Arrangements?

When a family member passes away, planning a funeral can be a cathartic process, providing a focus and an opportunity to celebrate the life of the deceased. Funerals allow loved ones to come together, provide each other with support, and process the emotions associated with death. Making funeral arrangements can be time-consuming and expensive, and the person in charge often has to mediate conflicting opinions on what should occur and when it should be held. When there are disputes over how to say goodbye to a loved one, or where the last instructions of the testator conflict with the family’s wishes, the question becomes: who has final say on funeral arrangements?

Who has final say on Funeral Arrangements

When a person dies, someone must make the required funeral arrangements, even if it is merely to appoint a funeral director to make all of the decisions. It is not unusual in this time of grief for family members to have differing opinions on these matters and this can lead to acrimonious disputes. For instance, if the deceased had a current spouse but children from a previous relationship, it would be understandable if both parties felt that they had standing to make the decisions about the funeral of their loved one. However, in this case, both parties would be wrong.

The deceased’s personal representative (ie the executor of the estate appointed in the will) has the legal power to make all decisions about their funeral and burial arrangements (though this does not include any decision in relation to cremation). In fact, funeral arrangements are one of the first duties of the personal representative. This underscores the importance of the executor locating the will swiftly to see if the deceased left any instructions on the issue. It is also best practice for the testator to inform their named executor of these wishes (through letter, funeral plan or conversation) so that if there is any delay in locating the will, the executor knows what the testator’s wishes are in time to plan the funeral.

The executor or administrator of the estate is responsible for choosing the date, location and type of funeral and can restrict the guest list as he or she thinks is appropriate. It is ultimately up to the personal representative whether they take account of the family’s wishes on the funeral arrangements.

In fact, the executor does not even need to follow the instructions that the testator leaves in their will. Legally, it is up to the deceased’s personal representative to make decisions regarding their funeral and burial, although it is common for the executor to feel a moral responsibility to follow the testator’s wishes. Whether the executor will actually be able to follow these instructions, however, may well depend on the practicality of carrying out the instructions, the cost, and whether it is contrary to any state or federal law.

Who has final say on funeral arrangements: Cremation Exception

It must be noted that when it comes to cremation, the testator does have the final say if they have left signed instructions in their will. For instance, in Queensland, the Cremation Act 2003 states that a personal representative is bound to follow the deceased’s instructions where they have nominated cremation or given contrary instructions. When the deceased is cremated, the person who applied to the crematorium has legal custody of the deceased’s ashes.  If the applicant was the personal representative, then they have the final say on where the ashes should repose, whether they are scattered in a particular location or divided for distribution to family members.

Who Pays For The Funeral?

The deceased estate is legally responsible for paying all the costs associated with the burial, cremation, funeral or wake. There are several options for the upfront payment of these costs. The personal representative can cover these costs and be reimbursed or the family can pay and be compensated. These reimbursements are considered liabilities on the estate and are paid before any other debt. The representative can also use funds from the deceased’s bank account to cover these costs if the bank gives permission. If there is no readily available source of funds, the personal representative can apply to the State Government or Centrelink for financial assistance.

Attendees at the Funeral or Burial

The deceased can specify in their will the guest list of people that they would like to attend their funeral, but these wishes are not legally binding. The legal representative has the discretion to choose the attendees, but it should be noted that it is difficult to restrict access to a funeral held in a public location. In circumstances where the testator has expressed specific wishes to exclude an individual from their funeral, a private funeral held on private property is probably the best approach.

Disputes over testamentary or funeral arrangements are relatively common and can escalate to costly litigation. If you are an executor or family member who is unsure of who has authority to act and how to proceed, Armstrong Legal is here to help. Call 1300 038 223 for expert guidance on any testamentary or probate matter. Please contact our specialist wills and estates team for any legal advice or representation.

Dr Nicola Bowes

This article was written by Dr 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 working in higher education, Nicola joined Armstrong Legal in 2020.

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