Who meets the cost of a funeral if there are insufficent funds in the estate?

To answer this question it is helpful to first step back and consider the normal setting for such a question.  A person has died leaving a valid will appointing and executor and instructing the executor to meet the cost of the funeral from the estate.

The executor arranges the funeral and later discovers that the estate does not contain sufficient funds to meet the funeral home’s invoice.

The executor has the right and duty to dispose of the deceased  (see the recent Supreme Court decision in Takamore v Clarke, which confirms this and considers how the matter should be resolved where a dispute arises.)

The executor has a claim ahead of all beneficiaries under the will for reimbursement of funeral expenses.

However, where the estate is insufficient to meet the cost of the funeral, the executor remains personally liable to meet the cost.  Accordingly, any executor should confirm the adequacy of the estate before entering into a contract for a funeral.

The matter is difficult as the inadequacy of the estate will no relieve the executor of the responsibility to dispose of the deceased.

There is some scope for cemetaries and crematoriums to permit the disposal of the poor.

State funeral grants of up to $1,855.75 can also be available where the deceased’s estate is insufficient to meet the cost of a funeral.

References:

• Public Trustee v Kapiti Coast Funeral Home Limited [2004] NZLR 560
• Takamore v Clarke [2012] NZSC 116
• Social Security Act 1964, s 61DB
• Burial and Cremation Act1964, s 49