It's Your Funeral, But Who Calls The Shots?

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...