When Someone Dies – Funerals and Remains

We get asked a lot of questions about what happens when someone dies. Recently, we were asked about funerals and what the law has to say about them. There’s actually a lot of law about funerals. These are the big ticket items you should know:

THE BODY

What happens to the deceased person’s body when they die? They get buried or cremated (usually). But who decides what happens? It’s not something you think about – until you have to. Here’s what you need to know:

  • A deceased person’s wishes about being buried or cremated (whether written into their will or otherwise) aren’t binding, but they are relevant.
  • If the deceased person had a will, the executor has the power to decide whether the person is buried or cremated and to make all the decisions about the funeral. That includes choosing the funeral director, the coffin the service etc. Although the executor gets to decide, they should consult with family members and other people who will be impacted by their decision.
  • If the deceased didn’t leave a will, things are much more complicated – there’s no easy rule about who will be in charge. In some cases, it means applying to the Supreme Court for a Judge to decide who can make these decisions

FUNERAL EXPENSES – WHO PAYS?

  • The law on this is clear. Whoever pays for the funeral is entitled to be reimbursed for the reasonable costs and expenses incurred. This includes the costs of burial or cremation and a headstone.
  • Funeral costs are paid preferentially from the estate. This means that unless an estate is insolvent, they can be paid immediately.
  • In practice, a bank will pay a funeral account if they are given a certified copy of the death certificate and a copy of the funeral account. This means that if you pay for a funeral you don’t need to wait for probate to arrange the funeral or pay the funeral account.

MAKING IT EASIER

It’s an emotional time when someone dies. A simple way to make things easier for the people left behind is to make sure you have a valid will which appoints an executor. This means someone is automatically “in charge” and can get things organised when you die.

For this reason you should consider letting your executor know that you have appointed them and where your will is stored.  You should tell your family too. Although it isn’t binding, you should also think about telling people what you want when it comes to your funeral and remains. In fact, you can often pre-organise and pre-pay for a funeral which can make things a lot less stressful for those you leave behind and it means you get the send off you want. (Imagine some dull song being played at your funeral when you always wanted to go out to AC/DC, Billy Joel, Whitney Houston, Madonna, U2 or whatever music floats your boat. Or some gaudy headstone when you just wanted something understated)

We’re all going to die. We may as well make it easy for those we leave behind. Get in touch here if you want to talk about preparing a will that sorts it all out.

To learn more about the services Bower Wood Lawyers provide, head to www.bowerwood.com.au. This article was first published on the Bower Wood website.

Need Legal Advice?

For legal advice from Rhys Bower or Nick Wood you can choose a complimentary call back or browse Our Lawyers.

This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.

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