Funeral arrangements and disposing of remains: the executor’s role

Of the myriad duties executors must perform, disposing of the deceased’s remains is one of the first and most fundamental obligations.

“[Executors] have a right of possession of the remains and a positive duty to dispose of the remains in a dignified and appropriate manner,” said 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.

While executors can, and usually do, follow any wishes the deceased left in a will or other document, “the executor has the final say,” said Paula Lester, assistant vice-president of trust solutions with Solus Trust, an affiliate of Raymond James, in Ottawa.

And it’s a criminal offense to neglect a lawful duty to properly care for a dead body, said Demetre Vasilounis, an estate lawyer with Fasken Martineau DuMoulin LLP in Toronto.

He said an executor’s duties under common law as it pertains to funeral arrangements can be classified under four categories.

The executor must dispose of the remains in a decent, dignified and timely manner; make funeral arrangements befitting the deceased’s station in life; pay for the funeral with a corresponding right to be reimbursed by the estate for reasonable expenses; and inform the deceased’s next of kin of the funeral arrangements.

Even though the responsibility is ultimately the executor’s, they will generally consult and coordinate with the deceased’s family on funeral arrangements. Executors will usually carry out a deceased’s funeral wishes unless the cost of doing so is unreasonable relative to the size of the estate.

In Ontario, the courts have regarded both burial and cremation, including the reasonable disposition of cremated remains (the scattering of ashes), as representing decent and dignified methods of disposing of remains.

In recent years, however, more clients are including funeral wishes in their wills involving alternative forms of burial, in particular ones considered to be more environmentally friendly, Vasilounis said.

In providing 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.

However, it could be considered reasonable for an executor to spend relatively more on a funeral if the deceased belonged to a community, or came from a cultural background, where larger or more lavish funerals are the norm, Lester said.

It would also be inappropriate for an executor to arrange for a bare-minimum funeral if the size of the estate and the circumstances justify a larger expense.

Executors are responsible for paying for funeral expenses, which the estate will reimburse. If someone other than the executor pays for the funeral, they may ask the executor to reimburse them for reasonable expenses from the estate assets.

If the liabilities of the estate are greater than the assets, an executor needs to be careful about how much they spend on a funeral, Lester said.

“While reasonable funeral and burial costs come first in priority of debts to be paid, what is considered reasonable by the court gets really pared back,” she said.

Where there’s no money in an estate to pay for a funeral, the onus to pay may fall on anyone who had a support obligation in respect of the deceased, such as a spouse or a parent. If someone else pays for the funeral, that person can make a claim for reasonable funeral expenses against the person who had the support obligation.

In practice, a family member or friend will often step up to pay for a funeral without seeking compensation if the estate has no money, Lester said. If no one can pay, the municipality in which 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.

Finally, the executor has a duty to promptly inform family members about the funeral arrangements and about how the remains will be disposed, Vasilounis said. Depending on the circumstances, an executor may be found to be in breach of their duty if they fail to do so.