Who can Make Funeral and Probate decisions after someone dies?

In Australia, the person who has the legal authority to carry out Probate of a deceased person’s estate also has the final say over the funeral arrangements. This will either be the Executor, as named in the Will (if there is one) or the Administrator, as determined by the Rules of Intestacy (if there isn’t).

Sadly, it’s not uncommon for disputes to arise between family members during the funeral arrangements, and this can make what is already a difficult time even more challenging. Once tensions have arisen between family members, these tensions can carry through to the Probate process, so it’s essential to try and resolve any disagreements as soon as possible.

If an agreement simply cannot be reached, it is possible to take the matter to Court to determine what should be done. Provided the named Executor or the appointed Administrator of the Estate has acted reasonably and not on a whim, the Court will generally favour the views of this individual. If there is a difference of opinion between two or more Executors or Administrators, the Court will look at the position in practical terms.

Funeral Wishes are not legally binding

This may be surprising, but funeral wishes set out in a Will, or funeral plan is not legally binding in Australia. That means that, unlike the rest of the contents of a Will, the deceased’s funeral wishes (such as whether they want to be buried or cremated, for example) can be wholly disregarded without any laws having been broken.

So, if the deceased’s loved ones don’t agree with their funeral wishes, then who makes the final call on what should happen?

The Executor or Administrator of the Estate

If there’s a Will, this would be the Executor. There will be one or more Executors named in the Will, and this is the person (or people) responsible for dealing with Probate and carrying out the terms of the Will. The Executor is also legally entitled to possession of the body, even before the Grant of Probate has been issued.

If multiple Executors have been named, those who wish to act will have an equal say when making decisions. For this reason, it’s vital that all of the acting Executors agree when making decisions. Communication is crucial here.

If the deceased didn’t make a Will, then this person would be the Administrator. Inheritance laws called the Rules of Intestacy would determine who is entitled to act as the Administrator of an Estate, in the absence of a Will. The Rules of Intestacy place relatives of the deceased in order of priority, starting with their spouse or civil partner, then their children, and so on.

The role of an Administrator is broadly similar to that of an Executor

What if the Executor isn’t family?

While an Administrator under the Rules of Intestacy will always be a relative of the deceased, this is not necessarily the case for Executors. It’s possible to appoint anyone you want as an Executor in your Will. Many will still choose a close relative, but others may choose to appoint a friend or a professional Executor, such as a Solicitor or bank.

Matters such as funeral arrangements can become more complicated if the named Executor isn’t a close relative of the deceased. Usually, in these circumstances, the Executor would simply step aside and leave the family of the deceased to make the funeral arrangements.

However, if a dispute arises between family members and the arrangements cannot be agreed on, the Executor still legally has the final say, even if this means overruling the wishes of the immediate family.

It’s also essential to bear in mind that, if the deceased did not leave a Will, specific individuals (such as non-married partners and step-children) are not recognised under the Rules of Intestacy. So if the deceased wasn’t married to their partner, then under these rules that partner would have no legal right to deal with the Estate or the funeral arrangements.

As previously mentioned, it’s essential to keep conflict to an absolute minimum following the death of a loved one, as disputes can have disastrous, long-lasting effects on family members. For this reason, wherever possible, it’s vital for everyone involved to try to keep in regular contact and talk through any issues as soon as they arise.