The last thing anyone wants to deal with when planning their loved one’s funeral is misunderstandings, upsets and disputes. If it’s your first time organising a funeral or the first time you have had someone close to you pass away then it’s likely you may not be aware of the legal considerations surrounding the funeral-planning process. Details such as who takes charge of the body after death, who makes the important decisions and what to do in case of a dispute are crucial and these are common concerns that families bring up with their funeral directors.
Even if you do not think that funeral legalities are something that apply to you and your situation, it’s always best to have an understanding of your individual funeral rights in the event of a dispute. Disagreements and disputes between family members is far more common than you might imagine, with some estimating that as many as a quarter of families experiencing some sort of disagreement during the funeral planning process.
While getting your head around the legal specifics may not be a sure way to prevent arguments from occurring during what is certainly going to be an emotionally charged period of time, it can at least help to mitigate the possibilities of misunderstandings and misinformation.
Who owns the body after someone dies?
The simple answer to this is that no one technically owns the body of someone that has passed away. But it is not entirely that simple, and the circumstances can change based on a variety of factors.
Firstly, although there is no such thing as the property of a dead body, there are situations in which a body has the right to be held by hospitals or coroners. In the first instance, the coroner will take possession of the body in order to determine the cause of death.
If the circumstances are not suspicious, then the body will be released after a temporary period of time. However, if the person is known to have died from a serious disease, it is likely that the body will be held by the hospital for examination. Once these processes have been completed, the body will then be released to the person who is legally responsible for disposing of it.
Who is legally responsible for organising a funeral?
While it’s a common misconception that a person’s next of kin is responsible for organising their funeral, in reality, this is not always the case. In the majority of cases, the next of kin will also be the person tasked with organising a funeral, but this is only because it is usually the next of kin that will be named the executor of the will and thus entitled possession of the body and how it is handled. However, in theory, the executor does not have to be a family member at all and in these cases, the person’s next of kin would have no legal say in the matter.
However, when it comes to specific funeral rights, such as deciding where the location of the burial should be and other minor funeral arranging decisions, a Will is not legally binding and the executor can act accordingly to their own wishes without taking into account any final wishes made in a Will that do not involve matters of inheritance.
Of course, just because a Will is not technically enforceable in a court of law, that does not mean that it is completely inadequate when it comes to organising someone’s funeral. If a loved one has left a Will with detailed instructions concerning their funeral plans, or even vague ideas about their last wishes, it can already ease the burden on family members of making certain decisions.
And while there are times when legal disputes occur even when final wishes have been spelled out in a Will, it is far more likely that family members will collectively agree on funeral arrangements when they are following the final wishes of their loved one, rather than being left to their own devices.
What organises a funeral when there is no Will?
When a loved one does not make a Will or make their last wishes known, this also means that there is no named executor. In these situations, executor rights and by extension, funeral rights would go to the person who has priority on intestacy. In situations where two or more people may be equally entitled, the final decision will be made by a judge.
If, for whatever reason, the person who has been selected to be the personal representative is not also the next of kin, it is likely that the funeral will be arranged communally. For example, a romantic partner may not be eligible to become a personal representative if they were not married to the deceased, and so it will be their children who may hold priority.
However, in situations where amicable agreements cannot be made, major funeral decisions, such as the place of burial or ownership of the cremated remains may result in a family dispute.
What happens if there are disputes over funeral rights and arrangements?
Disputes are, unfortunately, not uncommon when it comes to funeral planning and they can occur for a number of reasons. One of the most common reasons for legal disputes have to do with the contents and execution of someone’s Will.
Wills can often be disputed if a party suspects that it may have been written under undue influence, for example, an elderly relative being coerced into leaving a particular family member a large inheritance. On the other hand, disputes can also arise from family members fighting for their loved one’s last wishes as written in their Will to be honoured if they feel as though the person organising their funeral is neglecting to do so.
Even though they are extremely important, Wills are not legally binding and so when major disputes do occur and cannot be resolved in a timely manner, they must be brought before a judge in order to come to an agreement. Unfortunately, this also means that the burial or cremation will be delayed until the dispute is resolved and a decision is made.
Who is legally responsible for paying for the funeral?
The executor of the Will, or the appointed representative is legally responsible for arranging and, therefore, paying for their loved one’s funeral. Depending on the circumstances, (such as age) it may be possible that the person already had some sort of financial support in place to pay for their own funeral. This could either be in the form of a prepaid funeral plan, life insurance or just their own personal savings.
It is important to check all the terms and conditions associated with someone’s funeral plan or life insurance policy, as in some cases, only specific funeral directors may be used in to arrange the funeral and this will need to be taken into consideration. Additionally, most financial aids do not cover the entire cost of the funeral and so families may need to be prepared for providing a certain percentage themselves.
However, there are circumstances under which there may be no financial support left to pay for a funeral and the executors do not have the means to arrange one either. In these situations, there are various options available, including various government grants and schemes that can assist low income families. Once again, they may not cover the entire cost of a funeral, but they can help to alleviate part of the financial burden.
The legal aspects of funeral planning can seem overwhelming at first, especially if you have never been involved in organising a funeral before. But being aware of what may be expected of you should the time come, as well as what decisions you are legally allowed to make, will help you feel better prepared and could avoid potential disputes.
We are a family-led business offering funeral services in Essex since 1958.