Your Will

What You Need To Know About Funerals

What you need to know about funerals and how lawyers work with executors to provide a Grant of Probate and Letters of Administration.

What you need to know about funerals and how lawyers work with executors to provide a Grant of Probate and Letters of Administration.

Funeral expenses – Who pays?

Reasonable funeral expenses are usually paid by the deceased’s estate. This means that some assets of the deceased, usually money from the deceased’s bank account, will be used towards paying for their funeral.

If banks have been notified of a person’s death, then they will usually freeze the deceased’s bank account. However, banks normally allow funeral expenses to be paid from an account providing there are sufficient funds. If this money cannot be accessed at the time, then a family member or friend may pay and have the money reimbursed to them later.

The deceased’s next of kin or the executor named in their Will should take the account to the deceased’s bank for payment.  This will save them from paying it themselves and then possibly having to wait to be reimbursed.

Also, double-check whether or not the deceased had pre-paid for their funeral. Such paperwork will hopefully be stored in a safe place, perhaps with a copy of their Will.

Why does my lawyer need to know about the funeral expenses?

By law, funeral expenses are often required to be disclosed to the Supreme Court. This is needed for obtaining a grant of probate or letters of administration (explained further below).

If such a grant is required then funeral expenses need to be included on a list of all the deceased’s assets and liabilities. The executor or administrator (the person who handles the deceased’s estate) must promise (by swearing on the Bible or other religious text, or affirming) that this list is true to the best of their belief and knowledge.

What should you do if you are the executor, administrator or next of kin?

Make sure you get a copy of the funeral expenses as soon as possible. Keep the account safe and maintain a record of any other expenses in case your lawyer asks for them. If someone has paid the funeral expenses on behalf of the deceased’s estate, then make sure your lawyer knows who.

What is a grant of probate or letters of administration?

Obtaining a grant of probate or letters of administration is a strict process whereby documents are prepared by a lawyer (most of the time), signed by the executor or administrator and then lodged in Court.

The Court will then carefully look at the Will (if there is one) and check if it is the unhampered original and in accordance with law, and then formalise the Will and appointment of the executor or administrator.

The Court will then send back a bound document – ‘the grant’ – which is then used to call in and deal with the deceased’s assets.

Why would a grant of probate or letters of administration be required?

Without a grant, banks, share companies, the Land Titles Office (which deals with property) and other institutions are unlikely to release the funds or assets of the deceased; they often require a certified copy of the grant along with other paperwork to feel reassured that the Will and/or the executor or administrator have been approved by Court.

Obtaining a grant of probate or letters of administration is usually easier and quicker if you have a lawyer assisting you.

Funeral wishes in a Will

Often people will include their funeral wishes in their Will. They may state whether they wish to be buried or cremated and what kind of service they would like. Legally it is the executor who has the role of disposing of the body, but in practice it is often the family members who decide.

You should check the deceased’s Will for his or her wishes. The Will is usually stored in a secure area, and if the original Will is stored with a lawyer then please note that the lawyer won’t usually release it without the executor’s signed permission.

Lawyers will often be happy to meet with the executor and/or deceased’s next of kin and go through the Will with them.

Don’t forget, you are not alone

There is always someone out there who can help, and who has experience and expert knowledge in an area that someone needs assistance with. It is clear that death can bring out a range of emotions and that people often feel overwhelmed and helpless.

Funeral directors are experts in their field, just as Wills and Estates Lawyers are experts in their field. People from both professions understand that after a death of a loved one people need:

– those ‘extra worries’ and ‘legal stuff’ taken care of,

– clear and calm advice,

– time to do things at their own pace, and

– comfort, compassion and professionalism.

Just remember, you don’t have to understand everything or do it on your own. There are people out there whose job it is to help.

Whether you need to take the deceased’s name off of assets, transfer property, fill out paperwork, be reimbursed, gain access to banks and so on. Grieving family and friends don’t need those stresses. Leave it up to the experts.

For advice about your Will or Estate issue, contact your nearest Tindall Gask Bentley office. You can also start your Will online here.

 On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.