If you have accepted to be an executor for someone’s estate, then there are a few things you will want to be aware of when it comes to your obligations regarding funerals and disposing of the deceased’s remains. As an executor, you will soon find out that there are many duties that you will need to perform, but one of the first is the funeral.
As executor, “you have a right of possession of the remains and a positive duty to dispose of the remains in a dignified and appropriate manner.” That is according to Monique Charlebois, an estate lawyer in private practice in Oakville, Ont. and a former senior estates counsel with the Office of the Public Guardian and Trustee in Ontario.
Usually, the executor will follow the wishes that the deceased left in their will, but the executor has the final say.
Another thing you may want to be aware of if you’ve chosen to be someone’s executor is that it is a criminal offense to neglect a lawful duty to properly care for a dead body.
An executor’s duties under common law as it pertains to funeral arrangements can be classified under four categories.
The executor is responsible for disposing of the deceased’s remains in a decent, dignified, and timely manner; making funeral arrangements appropriate to the deceased’s station in life; paying for the funeral with the right to be reimbursed by the estate for reasonable expenses; and informing the deceased’s next of kin of the funeral arrangements.
Even though the executor is ultimately responsible for funeral arrangements, they will normally discuss and coordinate with the deceased’s family. Executors should generally follow a deceased’s funeral wishes unless the cost is prohibitively expensive in comparison to the size of the estate.
In Ontario, the courts’ view both burial and cremation, as well as the acceptable disposition of cremated remains (ash scattering), as decent and dignified methods of disposing of remains.
In recent years, however, more Canadians are including funeral wishes in their wills involving alternative forms of burial, in particular ones considered to be more environmentally friendly.
When it comes to a funeral befitting a deceased’s station in life, executors should be guided primarily by the size of the estate. A lavish and expensive funeral for a person with a modest estate would be considered inappropriate and could be challenged by beneficiaries or creditors, so if you have chosen to be an executor, you should be aware of this.
However, if the deceased belonged to a community or came from a cultural background where larger or more lavish funerals are the norm, it could be considered fair for an executor to spend comparatively more on a funeral.
On the other hand, it would also be wrong for an executor to plan for a low-cost funeral if the size of the estate and the circumstances warrant a higher cost.
Executors are responsible for paying funeral expenses, which the estate will repay. If someone other than the executor pays for the funeral, they may petition the executor to compensate them for reasonable expenses from the estate assets.
If the estate’s liabilities exceed its assets, an executor must use caution when planning a funeral. What is considered reasonable by the executor might be different than what the deceased’s creditors think is reasonable, and the courts will have to decide, so be aware.
If there is no money in an estate to pay for a funeral, the burden of payment may fall on anyone who had a support responsibility to the deceased, such as a spouse or parent. If someone else pays for the funeral, that person can make a claim to the person who had the support responsibility for reasonable funeral expenditures.
Usually, a family member or friend will step up and pay for the funeral if the estate has no money. But, if no one can pay, the municipality where the deceased last resided may pay for a burial or cremation if the deceased had a low income or was on public support at the time of death.
Lastly, Finally, the executor has an obligation to quickly notify family members about funeral arrangements and how the remains will be disposed of. If an executor fails to do so, they may be held in breach of duty, depending on the circumstances.
As you can see, if you choose to accept to be an executor for someone’s estate, by law your duties will begin very quickly after that person’s death. As you may know from many of my articles in this space, I strongly suggest that you begin your work long before the death of the person by making sure that they have an ESTATE ORGANIZER.
To find out if your estate plan is in order (and massively help out your own executor) take the ESTATE ORGANIZER ASSESSMENT QUIZZ and learn where your plan is strong and where your plan might need a little attention.
THIS ARTICLE IS PROVIDED AS A GENERAL SOURCE OF INFORMATION ONLY AND SHOULD NOT BE CONSIDERED TO BE PERSONAL INVESTMENT OR LEGAL ADVICE. READERS SHOULD CONSULT WITH THEIR FINANCIAL OR LEGAL ADVISOR TO ENSURE IT IS SUITABLE FOR THEIR CIRCUMSTANCES.