Funeral Wishes and Your Will: Why Communication with Your Executor Matters

KEY TAKEAWAYS:

• While you may include funeral wishes in a Will, it is strongly suggested that you inform your executor of your particular wishes.

• Wills are not often found or read until after the funeral meaning wishes may be missed during this important time.

• A Will is not necessarily instructions, having detailed and well thought arrangements may assist your loved ones during this difficult time.

• The lack of instructions may cause argument or disagreement amongst loved ones who try to organise funeral arrangements or how best to dispose of your remains.

 

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Co-Authored by Daniel De Maria

Planning your funeral may not be something you want to think about, but communicating your wishes during your lifetime can be one of the most thoughtful things you do for the loved ones you leave behind. When family and friends are grieving, having clear guidance about your wishes can reduce uncertainty, minimise disagreements and ease the emotional burden of making difficult decisions at an already challenging time.

In New South Wales, your Will can include funeral or memorial preferences. However, relying on your Will alone may not be enough. This funeral direction, in addition to details regarding your remains, are essential not just for your own peace of mind, but rather, makes the administration of your estate that little bit easier.

Your Will May Not Be Read Before Your Funeral

Although you can include your funeral wishes in your Will, it is strongly recommended that you also communicate those wishes directly to your loved ones and, in particular, your executor during your lifetime. Your Will may not be located or read until after the funeral or service has taken place.

This can create an obvious problem. You may have included detailed wishes about whether you want to be buried or cremated, the music you want played or the type of service you want, but your family may not be aware of those wishes when the arrangements need to be made. As a result, they may make arrangements that are contrary to your wishes, such as arranging for you to be cremated when you had expressed a wish to be buried.

For this reason, your executor should be aware of your funeral wishes while you are still alive and know where any written instructions or relevant documents can be found.

 

Funeral Wishes Are Different from Estate Instructions

Under NSW succession law, a Will governs the administration and distribution of your estate. However, funeral directions included in a Will can operate differently from provisions dealing with your property. It is important to note that regarding funeral wishes, Wills are generally not legally binding on the executor, although the executor should try to follow the deceased’s wishes unless there is insufficient money, or the directions are unreasonable or difficult to carry out.

There is an important exception concerning cremation: Section 34 of the Public Health (Disposal of Bodies) Regulation 2002 provides that a written direction in a Will stating that a person does not wish to be cremated is legally binding. This is why a conversation with your executor is so valuable. Your wishes should not simply sit in a document that may not be discovered until decisions have already been made.

 

Give Your Executor Clear, Practical Guidance

Most Wills that are drafted usually contain a sentence requesting for either a burial or cremation. While this may be sufficient it is important to think beyond this direction to make the celebration of your life more special and heartfelt to loved ones.

Your wishes might include:

• where you would like your funeral or memorial service held;

• whether you have a preferred funeral director;

• particular religious, cultural or personal traditions;

• music, readings, poems or speakers;

• who you would like invited or involved;

• whether you want flowers, donations to a charity, or something else;

• whether you have already purchased a burial plot or arranged a prepaid funeral; and

• how you would like your ashes or remains dealt with.

You do not necessarily need to put every preference into your Will. A separate funeral wishes document can be easier to update and, importantly, can be given directly to your executor and family.

Having a valid and up-to-date Will allows you to set out how you want your estate to be distributed rather than leaving the distribution solely to the statutory rules of intestacy. For this reason, it is important to keep your testamentary documents properly recorded and stored in a safe and secure location.

 

Client Example

Our office once acted for two clients who, following the sudden passing of their only surviving parent, were confronted with the difficult task of not only administering their parent’s estate but also arranging their funeral and burial.

Having been unable to locate a Will or any funeral instructions, and after much discussion, they decided to purchase a burial plot for their late parent. It was only after the funeral, when they located the deceased’s Will, that they were able to confirm that their parent had in fact wished to be buried. They also discovered that the deceased had already purchased a burial plot but had never communicated this to her executors, being her two children and our clients.

While discussing funeral arrangements can be difficult, particularly given the sensitive and emotional nature of the subject, this example highlights the importance of communicating your funeral wishes to your executors during your lifetime. If you have already made arrangements, such as purchasing a burial plot, it is equally important to ensure your executors know about them and know where the relevant documents can be found.

 

Preventing Family Conflict

Ambiguous funeral arrangements can become particularly difficult when family members have different views about what the deceased would have wanted. One person may believe a traditional funeral is appropriate, while another may believe that the deceased wanted something informal and private. Clear communication during your lifetime can remove much of this uncertainty.

Your executor will generally be responsible for making the funeral arrangements and should have regard to any wishes you have expressed. Where you have not provided clear directions, the executor may need to make decisions based on their understanding of what you would have wanted. This can become particularly contentious where there are multiple children, blended families or other relatives with differing views.

For this reason, your executor is one of the most important people to speak to about your funeral wishes.

 

Don’t Leave Your Final Wishes To Chance 

Making a Will is an essential part of planning for the future, but it should not be the only step you take. Your Will primarily deals with the distribution and administration of your estate, whereas your funeral arrangements may need to be addressed almost immediately following your death.

The safest approach is to ensure your Will is properly prepared and to have a direct conversation with your executor about your funeral wishes. You should also provide them with a copy of any written funeral instructions and tell them where your Will and other important documents are stored.

Taking these simple steps can make an already difficult time easier for your loved ones and help ensure that your final wishes are understood and respected.

Most importantly, keep your wishes up to date. Circumstances, relationships and preferences can change. A clear conversation today can save your family difficult decisions tomorrow. Your funeral is ultimately about how you want to be remembered and telling the person responsible for arranging it what matters to you gives them the best opportunity to honour your wishes.

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