I have a situation where a deceased testator included a clause in his that when his incapacitated son does he is to be cremated. His son is being cared for my a trust. The executor doesn’t have a deputyship or POA over the son. However, the executor wants to buy a funeral plan. My question is who has power to purchase this funeral plan and who should purchase this plan?
I think any person has the authority to purchase a funeral plan for anyone else as this is simply a form of gift, the gift being payment of the costs of the selected funeral. There is a separate question regarding whether the person responsible for organising the deceased’s funeral would wish to proceed with the funeral provided by the plan that was purchased. Taking that fact into account, it would be sensible to agree the funeral plan to be purchased with the person who will have responsibility for organising the funeral. Where there are personal representatives, they have the primary duty for disposing of the body. Therefore, the executor of the father’s estate would, ideally, reach agreement with the person who is expected to be the executor of the son’s estate regarding the funeral plan to be purchased. There is, of course, a risk that that executor is not the executor who ends up acting, and the executor who does end up acting may not wish to proceed with the funeral offered by the plan purchased by the father’s executor.
Yours the ever faithful Legal Beagle
It is also worth mentioning that there is a difference between a clause in the father’s will that creates an obligation to pay for the son’s funeral and a clause which merely expresses a wish regarding how he would like his son’s body to be disposed of. Arguably, the latter type of clause would not give the executor any authority to pay for the cremation and, if the executor, did wish to pay for the cremation he would need the authority of the residuary beneficiaries.
Thank you very much. This is very helpful.