Intestacy: Who Makes the Funeral Arrangements?

When a loved one passes away unexpectedly, it may leave family and friends without any idea of who should plan the funeral or what the deceased’s preferences would have been. As a general rule of thumb, the deceased’s estate executor is the person who is responsible for and has the authority to make funeral arrangements. When a person dies intestate (without a valid will), they won’t have named an executor who would otherwise be responsible for managing their affairs after death. One might conclude that the person acting as the intestate estate executor (administrator) should arrange the funeral. However, the selection of the intestate administrator likely won’t occur until well after the funeral. So, who plans the funeral arrangements of an individual who has died intestate?

Hierarchy

Generally speaking, when there are no directions or instructions left by the deceased, the next-of-kin will be the person to make the funeral arrangements. When the next-of-kin is unavailable, the next closest relative will have the responsibility. Usually, the hierarchy of authority resembles this:

1. Spouse,
2. Children,
3. Parents,
4. Siblings, and then
5. Grandchildren.

If the deceased’s spouse cannot or does not want to arrange the funeral, the authority will pass to their children. If the children cannot take on the role, the extended family will receive the offer. This protocol is not statutory law in BC, but is the most common way people address this issue.

Instructions Left by the Deceased

Typically, people preparing an estate plan include instructions for their preferred funeral arrangements. Regrettably, the law generally does not bind instructions for funeral arrangements, and the writer cannot guarantee adherence to their instructions. The person with the authority to plan the funeral arrangements can essentially make any decisions they wish in regards to the funeral. If you have specific requests for your funeral, it’s best to speak with your loved ones so that they understand what you wish for. It’s rare for a family member to specifically go against your requests when they understand and know what you wish for.

It’s recommended that people leave instructions of how they wish to have their funeral and burial arrangements planned. When they do, it’s easy for loved ones to simply follow these instructions instead of having the autonomy to make their own decisions.

Making Funeral Arrangements

Aside from planning the actual event for the memorial service, the person organizing will have a handful of decisions they will have to make. Some of these decisions include:

• Whether to cremate or bury the body;
• Where to have the remains rest;
• Whether to have a funeral or memorial service;
• Where the funeral/memorial service is to be held; and
• How much should be spent on the service.

It’s important to understand that the person planning the funeral is not the person who pays for everything. The deceased’s estate will pay or reimburse the person who pays for the funeral, assuming a reasonable amount is spent on the service. This means that the person planning the funeral can’t spend an excessive amount and expect to be fully reimbursed.

Controversy Over Who has the Authority to Make Funeral Arrangements

In the Ontario case of Catto v. Catto (2016), the deceased’s spouse and mother argued over who had the right to bury the deceased’s ashes. The deceased died without a will and without any written instructions of his funeral arrangements. In a case like this, the courts will use evidence and circumstantial factors to make a decision over who has the authority. The courts won’t necessarily apply the hierarchy as described above. Among other factors, because the spouse was the sole beneficiary of the estate she was given priority to make the funeral arrangements of the deceased. This case helps to show that there isn’t a specific system of determining who is responsible for making funeral arrangements. In conclusion, it’s always best for you to leave instructions and give loved ones an idea of your wishes to avoid dispute.

It’s always best to avoid intestacy and prepare your estate plan as early as possible. Remember- your estate plans can always be updated at a later date with ease. If you need help preparing your estate plan – the will, funeral arrangements, power of attorneys, etc., contact an experienced estate lawyer today. We can ensure that your funeral and estate are executed exactly as you’re expecting.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.