Attwood Marshall Lawyers, Wills & Estate Lawyer, Larisa Kapur, discusses funerals and the importance of including your final wishes in your Will.
There is a number of reasons why it is important for your funeral wishes to be recorded in your Will. These can include whether you want to be buried, cremated, or if you have a specific location you wish your final resting place to be.
For those with a Will, the Executor has the right to take possession of your body and follow through with what has been specified in the Will.
Where there is no Will, the person with the highest priority to get Probate or Letters of Administration, such as a spouse, would be left with the right to the deceased’s body and the right to follow through with any wishes that have been left. If specific wishes have not been indicated in the Will but have been discussed with family, these can also be considered but are not binding.
Who is in charge of the organisation of the Funeral?
The Executor or personal representative that is awarded that power will be able to organise the disposal of the body and funeral. Many people appoint a professional to be the Executor. This helps keep things simple and stress-free for their loved ones. Even with a professional acting as Executor, often the deceased would have intended for his/her family to have an input in organising the funeral, burial or cremation. This is why the Executor will often seek assistance from the family when making such important decisions.
Who pays for the funeral?
The Executor or personal representative is responsible for making the payment to the funeral home. However, if the deceased held money in a bank account, although their accounts are frozen, the Executor or personal representative is able to present the funeral home invoice for the burial or cremation and the bank can release these funds to cover the cost.
If there’s no money in the estate, then the Executor or personal representative can apply to the government to have a government funded funeral. This means the government would pay for a dignified burial or cremation.
What are the different types of funerals and how can these affect how a funeral is planned?
Specifying different types of funerals can be a very relevant wish that people include in their Will. For example, a Will may state a wish to be cremated with ashes scattered at a specific location. This gives the Executor somewhere to go to carry out the deceased’s wish.
Sometimes people have organised a pre-paid funeral plan through a funeral home with their wishes formally documented. These documents can then be stored with your Will, so the Executor is able to reference these when the time comes.
Are there situations where permission must be obtained to fulfil someone’s wishes?
This is not something I have experienced; however, there have been scenarios where people have snuck ashes into public places to be scattered in order to fulfil the wishes of their loved ones. For example, onto a roller-coaster at Disneyland to scatter ashes during the ride.
There are a lot of complications around these types of scenarios. People generally don’t ask for permission, and usually when you intend to go to a public place, you should seek such permission.
Conflict between family members on funeral arrangements
The Executor has right above all others to arrange the funeral. Sometimes if there is no Executor, these matters can get very messy and even end up in court.
How do funerals get arranged when there’s no Will?
The person who has the highest ranking to become your legal representative, such as a spouse or child, would have the ability to get possession of, and dispose of, your body.
If a Will is being disputed in court, does this effect the Funeral process?
Funerals need to be organised relatively quickly once a person has died. Generally, when a Will is being disputed it is usually because someone has not received enough provision.
These types of disputes should not affect funerals from going ahead, unless it is a direct issue relating to the disposal of the body. In this case an urgent court application would be bought to stop the person being buried or cremated. Other than these circumstances, there should not be any effect on the Executor arranging the funeral in accordance with the deceased’s wishes.
How can a Will ensure that you have the funeral of your wishes?
If you put specific wishes in your Will, in terms of being buried or cremated, or have included a document which needs to be read with your Will outlining specific funeral wishes, so long as the request is reasonable, the Executor is obligated to follow through with these.
If you want to be disposed of in a way that is considered unethical or illegal, or is simply not possible, then that’s a scenario where the Executor would not be able to follow through with the deceased’s wishes. For example, taxidermy is unlawful, and these types of wishes would not be granted.
Why is it important to write a Will?
Some of the questions asked during the Will writing process are things people may not have necessarily thought about.
People may say they don’t care what happens to them once they are deceased. Having a Will in place not only allows for the Executor to be granted power immediately and start attending to tasks that require attention, but it also clearly provides evidence to other family members regarding who is in charge. It is important to have a little bit of view in that planning ones Will takes away the burden that would be left on loved ones having to make such complex decisions. If you specify your wishes, this can provide some closure to your loved ones in knowing that you have chosen a place you are comfortable and happy with.
Do you need a Lawyer to make a Will, or can you write it yourself?
It is always recommended to have a lawyer complete your Will so that you know the Will is done correctly. If you go ahead and attempt to do the Will yourself, often it does not meet legal requirements.
A Will is not something you can simply write on a piece of paper, and ask to be given to a certain person. There are rules you must adhere to and if you don’t, your Will can be rendered invalid. This can mean instead of having a decent plan in place, you may have caused conflict for your family. In our experience, we see where people have attempted to complete their Will themselves and it has been quite ugly, messy and expensive.
How can Attwood Marshall Lawyers help?
As an essential business unaffected by the lock-down directives, we remain open for business. We continue to provide our legal services to the same exceptional standards. Our offices are located at Kingscliff, Coolangatta, Robina Town Centre and Brisbane. Our 24/7 phone line is: 1800 621 071.