In Scottish law, it is possible to include funeral instructions in a Will. If you do not, then Part 3 of the Burial and Cremation (Scotland) Act 2016 provides for fallback rules.
These instructions can provide guidance to your loved ones about your wishes for your funeral and burial arrangements. It is important to be aware that these are not binding.
Here are some tips on how to deal with funeral instructions in your Will:
- Be clear and specific: Your funeral instructions should be clear and specific to avoid any confusion or ambiguity. For example, you can specify whether you want to be buried or cremated, the location of your burial or scattering of your ashes, and any specific religious or cultural traditions you want to be followed.
- Choose a reliable Executor: Your Executor will be responsible for carrying out your funeral instructions, so it is important to choose someone who is reliable and capable of following your wishes.
- Consider alternative arrangements: While it is important to express your wishes, it is also important to consider alternative arrangements in case your instructions cannot be carried out. For example, if you want to be buried in a specific location but it is not possible, your Executor may need to make alternative arrangements.
- Communicate your wishes: It is a positive idea to communicate your funeral wishes to your loved ones in addition to including them in your Will. This can help avoid any confusion, misunderstandings about your wishes or that they are missed as your Will is read after your funeral.
- Review and update your Will: It is important to review and update your Will regularly to ensure that your funeral instructions reflect your current wishes. You may want to consider updating your Will if you change your mind about your funeral arrangements or if your circumstances change (such as moving to a new location). This could also be dealt with in a Letter of Wishes that separately deals with your funeral instructions.
It is always advisable to seek professional legal advice when drafting a Will to ensure that your wishes are properly recorded and that your Will is legally valid.
Under Part 3 of the Burial and Cremation (Scotland) Act 2016, there are several people who are entitled to make funeral arrangements for the deceased. These are:
- The Executor named in the deceased's Will: If the deceased has named an Executor or executrix in their Will, that person is entitled to make funeral arrangements on behalf of the deceased.
- The spouse or civil partner of the deceased: If the deceased was married or in a civil partnership at the time of their death, their spouse or civil partner is entitled to make funeral arrangements on their behalf.
- The partner of the deceased: If the deceased was not married to nor in a civil partnership with their ‘partner’ but they were living with their ‘partner’ as if they were married to each other and had been so living for a period of at least 6 months (or if the adult was in hospital immediately before death had been so living for such period when the adult was admitted to hospital).
- The surviving children of the deceased: If the deceased has surviving children who are over 16 years old and have the mental capacity to do so, they are entitled to make funeral arrangements on behalf of the deceased.
- The surviving parents or siblings of the deceased: If the deceased has no surviving spouse or civil partner, and no surviving children over 16 years old with mental capacity, their surviving parents or siblings are entitled to make funeral arrangements on their behalf.
- The nearest surviving relative of the deceased: If there are no surviving family members who are entitled to make funeral arrangements, the nearest surviving relative of the deceased is entitled to do so.
Further rules apply if none of the above relatives survive or if it is not an adult that died.
It is important to note that the person who makes funeral arrangements under the Burial and Cremation (Scotland) Act 2016 is responsible for ensuring that the arrangements are carried out in a manner that is respectful and dignified, and that complies with any wishes expressed by the deceased. If there is any dispute about who is entitled to make funeral arrangements, or if there is disagreement about the arrangements themselves, the matter can be referred to the courts for resolution.
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