Arranging a funeral
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Once the cause of death has been ascertained – either by a medical practitioner or by the coroner at the Coroners Court where reportable death cases are taken – the coroner will release the body, which then may be taken for burial or cremation (Coroners Act s 47). In practice, this almost always means that the body is conveyed to an undertaker.
If the body is with the coroner, an application must be made to the coroner to release the body (s 48). Under the Coroners Act (s 48), the coroner can decide who the body is released to, having considered the factors set out in the Act (s 48). This decision can be appealed in the Supreme Court of Victoria (Coroners Act s 85).
If two or more persons apply for the release of a body in the custody of the coroner, the coroner must decide who has the better claim to the body. In making this decision, the coroner must consider the executor of the deceased’s will and if that person applies, release the body to the executor. However, if the executor does not apply, then the body is to be released to the senior next of kin as defined in the Coroners Act. Otherwise, the coroner is to consider the provisions of the common law in deciding to whom to release the body (Coroners Act s 48).
At this stage several choices must be made. First, the choice of funeral director must be decided upon. The service charge varies between directors and consequently ‘shopping around’ can make savings. The service charge can be quoted to include the coffin or casket (unit pricing) or separately from the price of the coffin or casket (functional pricing).
The service charge covers such things as the use of a hearse, the transportation and disposal of remains, making arrangements with the cemetery or crematorium, and the taking care of legal requirements. It may also provide for costly but unnecessary extras, such as the use of a funeral parlour chapel, mourning coach, press notices and embalming.
The price of the funeral will vary greatly, depending not only on the choice of funeral directors, but also on the choice of burial or cremation (of course, the wishes of the deceased should be followed in the making of this choice, which in some instances may preclude a cremation, see ‘Cremation’, below), the choice of cemetery, and the number of extra services supplied by the funeral director. The law does not require a minister or formal ceremony, embalming, the placement of a notice in the press (see ‘Death notices’, below), or the delivery of the coffin to the cemetery or crematorium in a hearse. To maintain a standard of decorum, if private transport of the coffin is organised it should be undertaken in a covered vehicle (e.g. panel van) with curtains on the windows.
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The next of kin are not obliged to arrange a funeral. Whoever authorises the funeral director may be personally liable to meet the costs of the funeral unless it is clear the estate is liable to pay the account.
If there is an executor
If there is a will that names an executor, then they have custody of the body for the purposes of the disposal of the remains and therefore the ultimate control of its disposal (but see ‘Cremation’ and ‘Donation of body for anatomical research’, below).
If there is no executor
If there is no executor or interested relative, then a friend can organise the funeral without necessarily becoming obliged to administer the dead person’s affairs. A person who takes out letters of administration of a person who dies intestate has the same powers and responsibilities as a proving executor for the disposal of the remains, once a grant of administration has been obtained.
Arranging a funeral
Chapter: 9.5: Funerals
Contributor: Justin Rizzi, Barrister
Current as of: 1 September 2024
Law Handbook Page: 826
Next Section: Burial, cremation and donation of remains
