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Buried Or Cremated…who Gets The Final Say?

Buried or cremated…who gets the final say?

They are questions many people don’t want to think about…when you pass away will your body be buried or cremated? Where will your remains be placed? Perhaps you want your remains placed near to loved ones who’ve passed away, or perhaps you want your ashes to be scattered. To some people, it’s not an important issue, but others have very particular wishes and want to ensure their wishes are fulfilled.

Your executor is usually the person who has the right and responsibility to decide and arrange how your remains will be disposed of (that is, buried or cremated) and where your remains will be placed. Some people express their wishes for the disposal of their body in their will. If you have particular wishes for disposal of your remains it’s a good idea to state these wishes in your will, but it’s important to keep in mind that your funeral may have taken place and your body cremated or buried before your executor and your loved ones have read your will. For this reason, if you have particular wishes it’s also a good idea to tell your executor and your loves ones what those wishes are.

If you don’t have an executor, or they are not willing to take on the task, then the person who usually has the right and responsibility to make the arrangements is the person who would be entitled to a grant of administration of your estate (this is usually one of the major beneficiaries of your estate).

It is interesting to note that any wishes you have about disposal of your body (set out in your will or otherwise) are not binding – it’s up to those left behind to decide. If you feel strongly that your body be disposed of in a particular way, it’s important that you choose an executor who is likely to comply with your wishes, and who will consult with your loved ones.  Although your wishes for disposal of your body are not binding, there is one qualification to this – if you don’t want to be cremated and you have expressed this in writing, there is legislation which provides that you must not be cremated.

When it comes to your funeral, it is often the executor who makes these arrangements, but it could be someone else close to you. The full amount of funeral and burial/cremation costs (as long as they are reasonable) will be paid from your estate, and these costs are paid in priority to any distribution of the estate to your beneficiaries. If someone has paid the costs (perhaps your executor or a relative or friend) they are entitled to be reimbursed from the estate. Similarly, the costs of erecting a monument or some other way of marking the remains will be paid or reimbursed from the estate as long as the cost is reasonable having regard to the size of your estate and your circumstances in life.

It can sometimes be stressful for those left behind to arrange a funeral and disposal of the body when they are unsure what the deceased person’s wishes were. When it comes time to make or update your will, give it some thought and consider talking to your executor and your loved ones about it.

If you have any questions about any of these issues, or you want to discuss your will and estate plan, please do not hesitate to contact our estate planning lawyers on 02 4929 3995.

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