Ashes to ashes, dust to dust: cremations, burials, and legally what you can do with a loved one’s remains

Whether you are working through your estate plan and want to leave clear instructions for your loved ones about how to dispose of your body after you die, or if you have just lost a family member and you are planning their burial or cremation, there are so many ways to make it a special and personalised occasion, without the stress and expense of disagreements within the family explains Attwood Marshall Lawyers Wills & Estates Senior Associate, Debbie Sage.

Burial vs cremation – how to decide

Everyone has their personal reasons for choosing either burial or cremation when working through an estate plan and outlining what they wish for their body disposal after they are gone. Whether cultural or religious beliefs play a part, or the costs, practicality, and/or environmental impact sway you one way or another, there is no right or wrong answer when it comes to deciding how to lay someone to rest. Despite the various options on offer, it seems that cremation is becoming more popular than burial with many people choosing to celebrate the life of their loved one’s by scattering ashes in unexpected and unconventional ways.   

Although it is not a requirement to leave instructions in your Will about burial or cremation wishes, it can be beneficial to do so as this is where a lot of disputes arise between family members when a loved one passes away.

The person who is named as the executor in the Will, or legal personal representative, is the person who has the authority to take possession and control of the body. They are the person who has the first right to decide what will happen to the person’s remains, in line with the deceased’s wishes.

If there are signed instructions from the deceased person which outline their intention to be cremated, whether these are written in the deceased’s Will or documented and signed elsewhere, or via a prepaid or pre-arranged funeral, then the executor or legal personal representative has a duty to ensure an application to cremate the person is made.

In Queensland – there is legislation that states a cremation cannot be carried out if a spouse, adult child, parent, executor, or legal personal representative, objects to the cremation. However, this does not apply where the deceased themselves has left written instructions to be cremated as it overrides any objection made.

With regards to possession and control of the ashes – not many people realise that whoever applied for the permission to cremate has the right to possession and control of the ashes to the exclusion of all others. Be careful who you let sign the paperwork for your loved ones to be cremated! They may not necessarily dispose of the ashes in the way you hoped or your loved one wished for.

Consider the costs

In some cases, burials can cost four times more than cremation due to the land required and the associated costs of maintaining a cemetery.

The average burial in Australia costs $19,000. By comparison, the average cremation costs $7,400, give or take depending on what you decide to do with the remains.

Cremation – what to do with the ashes?

There are so many different options when it comes to deciding what you want to do with a loved one’s ashes. The most conservative option is to hold the ashes in a columbarium, niche wall, or urn garden at a cemetery or church.

However, over the years, more and more creative ways have become available and mainstream with dedicated companies offering services allowing a personalised way to memorialise a loved one that reflects their unique personality, life, or wishes.

Here are the top 8 creative cremations you may wish to consider:

1. Custom urns: For those who wish to take ashes home, there are hundreds of thousands of decorative urns available to be able to safely store ashes, including choosing an urn for indoor or outdoor spaces. This can be a great option if you want to keep the ashes close to you whilst also being able to take them with you if you move house or overseas.
2. Jewellery keepsakes: Cremation jewellery is available in the form of necklaces with pendants, rings, bracelets, earrings and more, where you can store a small sample of your loved one’s ashes and carry it close to you.
3. Precious gemstones: Turning ashes to gemstones comes with a significant cost, however, if bling is your thing, there are several companies who specialise in creating diamonds and crystals from a portion of someone’s ashes.
4. Portraits: You can choose to have a portrait painted of the dearly departed, with the artist mixing the ashes with paint to leave you with an artwork you can treasure forever.
5. Fireworks: Celebrate the life of a loved one with a fireworks display, ashes included, sending the ashes into the sky and scattering them across the ocean, a river, or any special location the family chooses. A funeral director is able to arrange this to happen, or alternatively you can liaise directly with a fireworks company to decide what colours and pops you want for the occasion.
6. Intergalactic: You can send your loved one into space so that when you look into the night sky, you can remember them, no matter where in the world you may be. From sending the ashes into earth’s orbit, or launching to the surface of the moon or deep space, there are various options available, mostly through US based companies.  
7. Vinyl record: Remembering someone with music may be an ideal choice for a musician or music-loving loved one. There are companies (mainly in the UK) that provide a service to put ashes in a vinyl record. The bespoke vinyl record can also record a personal message, soundtrack, or any other music to commemorate the deceased.
8. A living memorial: You can turn a loved one’s ashes into a beautiful memorial tree that will live on for generations to come. There are companies in Australia who supply a bio urn along with the living tree that will suit the specific location you intend to plant it. The company provides a replacement guarantee if for any reason the tree does not thrive and the bio urn is also 100% biodegradable, made from recycled plant-derived materials. This could be a wonderful option for the nature loving or environmentally conscious.

If the above options don’t fit the bill, scattering ashes may be more appropriate. However, there’s a few things to know before you head to your favourite location to send-off a loved one.

Permits and permission: is it needed when scattering ashes?

Although it is important to choose a location of meaning when you scatter the ashes of a loved one, there are additional factors to consider before going about the ceremonial duties.

If you want to scatter ashes on land that you own, you will not need permission or permits to do so. However, if you wish to scatter ashes on someone else’s private property, you will need the landowner’s permission before proceeding.

If scattering ashes at sea is more your preference, it will depend on where you intend to scatter them as to if you need to obtain approval. Scattering ashes at sea from the beach, oceanside or a pontoon will not need anyone’s permission, however, be mindful of the weather, especially if it is a windy day and other people are in the area.

If you want to scatter ashes at sea from a boat, you will need to obtain permission from the vessel owner to do so, just as you would from someone who owns private land. You will also need to ensure that you avoid commonwealth marine reserve areas.

If you intend to scatter ashes in a local park, you will need to obtain permission from the trustee of the park or reserve. Councils and other government authorities may set a time and place when scattering ashes can be undertaken, and they may also impose other conditions you must follow to scatter the ashes at these locations.

Things to consider when scattering ashes

When choosing a location to scatter ashes, the following factors should also be considered:

• Will access to the place remain unrestricted so that you can visit in the future? If you choose an area that is developed in the future, you may not be able to return to the location.
• If you choose to scatter ashes on your personal property, you may need to leave them behind one day if you move house. You cannot take ashes with you once they are scattered. If this is of a concern, you may wish to secure the ashes in an urn or alternative option to be able to relocate them if you move.
• Consider the weather. Breezy days may turn what is meant to be a memorable experience into a disaster if the ashes are carried away and blow onto people or someone else’s property.

Can you travel with ashes?

If you want to take ashes to another country to scatter them, perhaps the deceased wished their ashes would be scattered in their country of origin, you are permitted to do so, however you will need to contact the consulate for the country the ashes are being taken to ensure you are complying with local requirements.

You will also need to carry the ashes in a sealed urn or container in hand luggage – not check-in baggage!

It is important to have a copy of the death certificate of the deceased person in your possession as well as a copy of a statement from the crematorium identifying the deceased person, the date, and the place the body was cremated. 

Attwood Marshall Lawyers – helping executors carry out the wishes of the deceased

Losing a loved one is never easy; however, it can bring some peace being able to commemorate the person in a special way that reflects their unique style and personality. If you have taken on the responsibility of executor of an estate and are arranging a loved one’s funeral, don’t feel that you must go it alone.

From leaning on a funeral director at the initial stage after death to reaching out to a suitably qualified Wills and Estates lawyer who can assist with the administration process, take comfort in knowing that support and guidance is available.

At Attwood Marshall Lawyers, we have a dedicated team of lawyers who practice exclusively in estate planning and estate administration. Our lawyers can support and help executors fulfil their duties and carry the load to ensure the estate is administered as quickly as possible.

If you would like to discuss an estate administration mater, please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.