“Are my wishes actually going to be carried out?” is one of the frequently asked questions in the context of estate planning in general.

Yes, your executor is legally required to carry out your wills and manage your estate in line with them if you have a valid will.

However, what about the requirements for funeral plans, cremation, and burial?

You would have been asked if you wanted to include instructions on burial, cremation, and funeral arrangements in your will if it had been prepared by us or any other solicitor. Although it is not required, you might choose to include one. In order to communicate their desires to their executor and family members when the time comes, many people decide to make an election regarding these.

Is this guidance legally binding, though? Do these instructions need to be followed by your executor, just as they do when allocating the assets of your estate?

Funeral arrangements and burials

In the event that your will contains instructions regarding burials (i.e., whether you want to be buried and where) and funeral arrangements (i.e., whether you want your favorite Celine Dion song to be played on a loudspeaker after the eulogy), the short answer is that your executor is not required by law to follow these instructions.

This might surprise you.

Funeral and burial plans are entirely up to your executors, the person or people you designate to oversee and manage your estate, if you have a will.

The administrator is the only person with that authority if you pass away without leaving a will. The person who is most closely related to you is typically the administrator.

In any case, everything you specify in your will regarding whether or not you want to be buried, where you would like to be buried, and the manner of your burial is merely a wish.

Cremation

We’ve discovered that more and more people are opting to be cremated rather than have a traditional funeral.

Legislation and intense discussion have surrounded this topic. Regretfully, there is now a lack of consistency among the States and Territories regarding which cremation-related directives are legally obligatory.

Here we’ve summarised the different positions as they currently stand in all Australian jurisdictions:

• Both “I want to be cremated” and “No, I don’t want to be cremated” are legally binding in the states of New South Wales and Western Australia.
• According to the ACT, you are only legally obligated to say, “No, I do not want to be cremated.”
• “I want to be cremated” is a legally binding statement in the NT, SA, and QLD.
• Regardless of whether you indicated “yes” or “no” to cremation in your will, your executor is not required by law to carry out your desires in Victoria and Tasmania.

The State or Territory in which you lived at the time of your death and whether you have designated cremation or not will determine whether your executor is required to fulfill your wishes as a legally binding provision in your will.

From a practical standpoint…

It all boils down to this: what actions can you take right now to guarantee that your desires will be honored?

An excellent first step would be to include explicit directions in your will. Yes, even when those desires might not be legally enforceable.

It should be clear from this conversation that selecting the right executor is crucial. Thus, make an informed decision. You should pick someone who shares your values and ideas and whom you can rely on to honor your wishes. In the end, pick a person who will most likely fulfill your desires.

The secret to your estate planning exercise is communication. A plan cannot be considered effective until it is shared with the people who will be responsible for seeing it through to completion. Therefore, when the time comes, have those candid and honest conversations with your loved ones so they know how you want things to go.

It will be a difficult discussion, but why not do it now to avoid your loved ones dealing with the misunderstandings, conflict and pain on top of dealing with bereavement of having lost you. Any sound estate strategy seeks to eliminate doubt and guarantee that your desires may be fulfilled.

Of course, communication won’t fix all problems, and the law certainly can’t address all human disputes, but it most certainly will promote understanding and make a smoother road for those you leave behind.