If you have a will, you may have spelled out your detailed wishes for your funeral in the document. Would you be surprised to know that your personal representative does not have to follow them? You may have also heard that funeral expenses get paid out from an estate in priority to all other expenses. So, who actually has legal responsibility for arranging and paying for the funeral? And what should you keep in mind at the outset when the question of funeral arrangements comes up?
Who has the legal duty for funeral arrangements?
In Alberta, it is well-settled that the personal representative named in a will has the sole legal responsibility and authority for making funeral arrangements. That authority is confirmed by the Estate Administration Act, the Funeral Services Act, the Cemeteries Act and their respective regulations. That means the personal representative does not have to follow funeral instructions in a will, though the vast majority do.
If there is no will or the personal representative is unavailable or refuses to give burial instructions, then the law gives the following people priority: spouse, adult child, parent, guardian, increasingly more distant relatives, with the Minister of Human Services being a decision-maker of last resort. Where there are two or more individuals of equal rank, the right devolves on the eldest. The Court has the discretion to vary the order of priority among all of the above categories.
Who has to pay for the funeral?
In Chernichan v Chernichan (Estate), 2001 ABQB 913, the Alberta Court of Queen's Bench confirmed that the deceased's estate has the primary responsibility to pay for the funeral expenses.
In that case, the deceased's brother paid for the funeral out of his own pocket. The personal representative used estate funds to pay out other estate debts before paying the brother back for the funeral expenses, leaving the estate insolvent. The brother claimed that he should have been paid back in priority to all other creditors, including Canada Revenue Agency.
The Court conducted an in-depth review of the law and concluded that where the estate is insufficient to cover the funeral expenses, a secondary responsibility falls on the person responsible in law for supporting the deceased. Therefore, a surviving spouse, adult interdependent partner or a parent of a minor child may have to make up the shortfall. The residual responsibility to pay for the funeral rests with the Minister of Human Services.
In Chernichan, the Court also held that funeral expenses are entitled to a priority over other estate administration expenses and liabilities, except for the expenses of proving a will. The personal representative, being the deceased's wife, was ordered to pay the expenses to the brother.
What is a reasonable funeral?
The liability of the estate, the personal representative, and the responsible survivors for funeral expenses is limited to reasonable expenses. There is no universal answer as to what is reasonable. The analysis will depend on the deceased's station in life, size of the estate and cultural background. For example, in Lopushinsky Estate, 2015 ABQB 63, the Court held that a $26,000 funeral was reasonable given the deceased's highly respected status in his community (the funeral required overflow seating and a video link to the service because of the number of attendees), the fact that he spent a similar amount on his wife's funeral a year before, and the size of his estate.
Things to keep in mind at the start
On the planning side, pre-paid funeral arrangements may decrease family disputes about the type of funeral you want and will make the job easier for your personal representatives. They also eliminate the risk of there being inadequate assets to pay for the funeral.
Whether you are an executor or a family member who is making funeral arrangements, always consider the reasonableness of the cost of the funeral in light of the deceased's station in life and expressed wishes before making the final arrangements.
While personally paying the funeral expenses may be a generous gesture, one would be well advised to consider the likelihood that estate assets will be sufficient to reimburse those expenses. Finally, ensure that your intentions with respect to the payment are documented at the outset – is the payment meant to be a gift or simply a short-term loan to the estate?
Funeral arrangements have the potential to set the tone for the rest of the estate administration. Taking care to make the right decisions at the start is important and personal representatives and family members should not rush into decisions during the difficult and emotional time immediately following a loved one's death.
Predrag (Peter) Tomic is a wills and estates lawyer with a focus on complex estate and trust litigation, estate planning and probate matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
