Who has Legal Authority to Deal with your Cremated Remains?

pre funeral planner Mississauga Oakville

Many people know that they wish to be cremated, however when I ask them what they would like their family to do with their cremated remains, I am often met with a blank look. People will say “well, I don’t care I will be dead.” While this is true, I don’t think these people realize the potential they are creating for family feuding. Yes families do argue, disagree, fight and litigate over who has the right to and what to do with mom or dad’s cremated remains. So who has the legal authority to deal with your cremated remains?

If there is a valid will, then the Estate Trustee has the legal authority to take possession of and decide what to do with the cremated remains. However if there is not a valid will, then the Table of Sanguinity is followed. This literally means that the blood line is followed. The sequence would be first closest next of kin (for example your spouse) and if there is no spouse, then children etc.

Recently a person died without a valid will and wished to be cremated. Without a spouse, the closest next of kin are her children, and guess what?  They each want mom’s cremated remains! They will not relinquish their position and consent to dividing the cremated remains, so they could each have a portion of their mother’s cremated remains. Really? Do you think this is what their mom wanted? I don’t think so.

In accordance with the Funeral Burial and Cremation Services Act – July 1, 2012; a funeral home is allowed to charge a $350.00 refundable deposit on the cremated remains. If the Estate Trustee takes possession of the cremated remains prior to 1 year from the date of the cremation; then this deposit is refunded to the estate of the deceased. However in this scenario there is not a valid will, so there is not a named Estate Trustee.

Apart from the awkward position this puts the funeral home in; the cremated remains will not be released to either child. The children will have to make an application to the court and receive a Certificate of Appointment of Succeeding Estate Trustee without a Will. This process will take significant time and money.

All of this could be avoided with taking the following steps:

  1. Have a valid will that appoints an Estate Trustee. Include directions as to what is to be done with the cremated remains in the will.
    2. Have a prepaid funeral arrangement at the funeral home that includes directions as to the distribution of their cremated remains.

Many people are comfortable with the notion of being cremated, however they need to take this decision one step further and decide what they would like done with their cremated remains.

What can be done with Cremated Remains? There are 4 choices.

  1. The cremated remains can be returned to the family
    2. Cremated remains can be buried or scattered on your own personal property
    3. Cremated remains can be buried or scattered on Crown Lands
    4. Cremated Remains can be buried, scattered, or entombed in a niche at a cemetery

If any of this resonates with you and you would like to avoid this type of situation, please contact me and let’s chat. It is very easy and cost effective to set up your funeral file ahead of time.
Don’t leave a mess. Instead leave a solution for your loved ones. Now is the time to take care of this, not when things a falling apart quickly.

As always, I welcome your feedback too. You can connect with me by phone or email, leave a comment here on the site, or click the contact tab at the bottom of the screen if you are reading this post on the website.

Until next time,


Katherine Downey is the #1 Funeral Preplanning Professional in Canada for the fourth time. She is a professional educator and licensed funeral director specializing in prepaid funeral planning. To set up an appointment or have your questions answered, please contact her directly.

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