No arrangements on death – who steps in?

The Burial and Cremation (Scotland) Act 2016 received Royal Assent on 28 April 2016, with a number of sections coming into force on 28 December 2016.

The Act clarifies what should happen in the absence of an “arrangements on death declaration”. A declaration can be written or verbal. Where someone sets out funeral wishes in their will but does not specify who should implement them, the wishes will not qualify as a declaration.

If an adult dies without leaving a declaration, or their wishes cannot be reasonably implemented, the nearest relative will be entitled to make arrangements. The Act provides the following hierarchy for defining “nearest relative”:

• spouse or civil partner;
• cohabitant;
• child (including stepchildren);
• parent;
• sibling;
• grandparent;
• grandchild;
• uncle or aunt;
• cousin;
• niece or nephew; or
• longstanding friend.

The Act might not prevent disputes from arising, but it provides much needed clarity as to who should make funeral arrangements. If there is more than one person in a group (e.g. children), they should make decisions together. If they cannot agree, a claim can be brought before the sheriff.

There are similar provisions in place for children (anyone under the age of 16). The Act provides the following hierarchy for defining the “nearest relative” for a child:

• parent or person who held parental rights and responsibilities;
• sibling;
• grandparent;
• uncle or aunt;
• cousin;
• niece or nephew; or
• longstanding friend.

A child cannot leave an arrangements on death declaration, despite being able to sign a will at the age of 12.