Funerals

When someone dies, the first thing that needs to be arranged is the funeral or at home vigil followed by the cremation or burial of the deceased. It is not a legal requirement to hold a funeral.  

Arranging the funeral

If you are arranging a funeral, you should consider the wishes of the de​ceased.

A deceased may have left instructions about what they want to happen at their funeral. These instructions could have been something that the deceased said before they died, or something they wrote down in a note or letter.

You can't cremate a deceased person who has made a written direction that they are not to be cremated. Any other directions about a funeral that a deceased person made in their will are not legally binding.

Directions in a will

A will is a written document that sets out the intentions of a person and explains how their estate will be distributed after they die. The person making the will is called the 'testator' (male) or 'testatrix' (female).

Not all wills have directions about the funeral. If the deceased did make directions in their will, this is simply a statement of what funeral arrangements the deceased wanted.

If you are an executor in the will you should ensure that you try to carry out the deceased's wishes and organise the funeral as directed in the will. This may reduce disputes among the families and friends of the deceased, who may feel strongly about the deceased's wishes.

The specific directions may include: 

• whether the person prefers to be buried or cremated
• the location of the burial or cremation
• the type of coffin or floral arrangement
• the type of music to be played at the service 
• any special requests.

In some circumstances it may not be possible to hold a funeral the way the deceased intended. For example, there may not be enough money in the estate, or the directions are unreasonable or difficult to carry out. If you are arranging and paying for the funeral, you may make arrangements that you consider to be appropriate.

If there is no will

If there is no will, the person who is entitled to administration is usually the person who is responsible for the funeral and the burial. The person entitled to administration is the next of kin. The next of kin is the deceased person’s:

• spouse 

• adult children

• parents

• adult siblings.

If there is a dispute over who is responsible for the funeral and burial, you can try mediation. If you can’t reach an agreement at mediation, you can apply to the Supreme Court of NSW. You should get legal advice from a private lawyer before applying.

Funeral plan

If a deceased person has paid for their funeral before they died, the written agreement they made with the funeral director may include specific directions for the funeral.

The funeral director should ensure that the deceased's wishes are followed.

Paying for the funeral

This will depend on what arrangements were put in place by the deceased.

The deceased may have pre-paid for their funeral or have a funeral plan, such as a funeral bond or funeral insurance.

If there is no funeral plan in place, the person who arranges the funeral is usually the person who is legally responsible to pay for the funeral. The person will usually be able to recover the costs of the funeral from the estate.

If there is no money or assets in the estate to pay for the funeral, the government may pay for a funeral. This is called a destitute funeral.

The person who organises the funeral is legally responsible to pay for the funeral.

For more information, see  Paying for the funeral. 

Going to the funeral

Disputes often arise when a family member, relative or friend of the deceased is not notified of the death or funeral arrangements. If you have arranged a funeral, it may be a good idea to notify relatives or other people who may want to attend the funeral.

There are no legal rules about who can go to a funeral and there is no right to exclude friends or relatives from attending and saying goodbye.

If you are having a dispute with another person and you are finding it difficult to talk to them on your own, you may consider attending mediation at a Community Justice Centre (CJC) to try to resolve the dispute.

If a destitute funeral is being held, NSW Health is responsible for contacting the next of kin so that relatives and friends have an opportunity to attend the funeral. 

Dealing with ashes

If the deceased was cremated, the person who arranged the cremation is entitled to collect the ashes of the deceased from the crematorium or funeral director.

After collecting the ashes, there are many things that you may choose to do with them, including: 

• scattering the ashes 

• placing them in an urn 

• burying the ashes at a cemetery or burial ground.

If you want to scatter the ashes, you must obtain permission from the owner of the land or relevant authorities such as Transport for NSW, NSW Department of Planning and Environment and local councils. If you scatter the ashes without permission, you may be charged or fined. When you have permission, you may still have to comply with restrictions. For example, if you get permission to scatter the ashes in the ocean, you may need to do this a certain distance offshore.

If you do not want the ashes, you can ask the crematorium to dispose of them or speak with the deceased's family or friends about what they would like to do with the ashes.

Sometimes disagreements may arise between family members who want to keep the ashes or want some of the ashes. 

It is important to try to resolve disputes between family members. Some crematoriums may charge storage fees if the ashes are not collected within a certain time. If no one collects the ashes, the crematorium may dispose of them after twelve months.

If you are having a dispute with another person about the ashes and you can't agree, you may consider attending mediation at a Community Justice Centre (CJC) or get legal advice.

Choosing the headstone

There does not have to be a headstone or monument on the grave. If the executor or next of kin arrange the funeral, they may choose a headstone or monument. The person who orders the headstone will be legally responsible to pay for it. Whoever orders the headstone may also choose what is written on it.

Sometimes disagreements may arise between family members who prefer a particular type of headstone or writing on the headstone. You should talk to other family members and consider the deceased's wishes, especially if it was stated in their will.

It is important that you first contact the cemetery to check if they have any special requirements and obtain their permission before you order the headstone or plaque from the monumental mason.

Headstones can be very expensive so you should also check if there is enough money in the deceased's estate to cover the expense.

Aboriginal and Torres Strait Islander funerals

It is important to recognise the cultural and spiritual practices of Aboriginal and Torres Strait Islander people.

If you are arranging a funeral and having some difficulties, you may contact the Aboriginal Liaison Officer at the hospital or an Aboriginal Community Organisation which may be able to assist you.

If you want to bury the deceased in a special way, for example, without a coffin, you must contact the Local Health District Public Health Unit to ask for permission before you bury the deceased.

For more information, contact NSW Health. 

Aboriginal people who are ordinarily resident in New South Wales or members of the Land Council may be entitled to limited financial grants from the New South Wales Aboriginal Land Council to assist with the costs of a funeral.

For more information, see Funeral Fund on the NSW Aboriginal Land Council website.

Transport for NSW offers an Aboriginal Funeral Transport Program to help pay for the cost of return tickets for individuals and groups travelling to a funeral using an existing public transport service. 

For more information see, The Aboriginal Funeral Transport Program on the Transport for NSW website.

Disputes over the burial of an Aboriginal person

If there is a dispute over the burial of an Aboriginal person who has died without a will, you should try mediation first to reach an agreement. 
 
If you can’t resolve your dispute at mediation, you can apply to the Supreme Court of NSW.  An application to the Supreme Court of NSW is expensive and complicated. The Court will consider:

• who is entitled to letters of administration

• the practicalities for the burial

• the cultural, religious or spiritual factors 

• the deceased’s own wishes 

• the views of any living close relatives and the community.  

You should get legal advice from a private lawyer before you consider applying to the Supreme Court of NSW.