Please select your state

We will show you information specific to your state.

Home | Q & A on 2GB discussing Wills & Estates Law 05/12/13

Cemeteries and Crematoria Bill 2013

Thursday, 5 December 2013

********************

C – Chris/PS – Paul Sant/C1, C2, C3, C4 – Callers

********************

C –      This is Legal Matters sponsored by Turner Freeman, contented by Turner Freeman and that mean this week we’re talking to Paul Sant. Paul thank you for coming in.

P –       Thanks Chris.

C –      Paul does a great job with Wills and Estates so you’ve got a question about a dispute that may be coming up in your family or has gone past in your family or you need some assistance with. You will not get free advice like this which is why we do this segment and we speak frequently about Wills and Estates and disputes and by all means jump on that open line right now, Paul won’t be here forever. Jump in as soon as you can and get that free advice 131873 is the telephone number.

C –       Now one topic that I have discussed independently of your presence in the studio Paul is the Cemeteries and Crematoria Bill 2013 which we were discussing when it was sitting between houses so it had been passed by the lower state Parliament and it was before the upper House. It has now been passed, the debates now over

P –       Yep.

C –      Um, what are the objects of the Bill?

P –       According to the documentation, firstly they want to recognise the right of individuals to a dignified internment and treatment of their remains. Um, they want to ensure, um, the practices and beliefs of various religious groups are respected. Thirdly, which perhaps some people take the view it might be the problem, is to ensure that there is sufficient land that can be acquired to satisfy current and future needs for internment, and also to regulate. To ensure that there is a consistent regime for regulating the crematoriums and cemeteries.

C –       Ok, go back to point three, this is the point that we have debated with the minister on this program to ensure that sufficient land is acquired and allocated for current and future generations. So therefore there is this contentious provision in the Bill which could allow for grave sites to be reused after 25 years, explain what that means and what circumstances.

P –       Ok, now first lets be quite upfront here. This bill, this act does not affect current plots or people’s plots, or people’s lots.

C –      Its not retrospective.

P –       Its not retrospective. So they’re not going to, you know, dig up someone who is already buried. Um, they’re introduced this, basically this right, um or this licence I suppose you could call it. Um you’ve got now an alternative whether you want perpetual internment, perpetual burial, or this licence burial. And this licence can operate for a period of 99 years and I think the initial term is 25 years and there’s obligations if people want to extend it that’ll be automatically extended for periods up to 99 years. Now what that means is now people who are doing Wills, we now have to consider the question, which we never did in the past, well, not only do you want to be buried or cremated but do you want to be buried perpetually or whether you want a simple licence.

C –      We never had the choice before.

P –       We never had the choice before.

C-        However, however, plots have expired before as I understand it. Is that right?

P –       I think in some, Yes Yes, in crown lands I think, some cemeteries.

C –       Some cemeteries that applies, so now we’ve been given the option, it just seems to me as if people can’t afford the perpetual plot in some circumstances so this allows others to have a more temporary lease over the plot.

P –       Correct, correct. One of the side effects of this is if your the executor of an estate and the deceased had one of these rights of internment you are bound to now notify the manager, the cemetery manager, because they have to maintain a record of people who own all these lots. Now I know for example in my own family, my grandfather died many many years ago, I’m sure that the cemetery manager has no idea where the relatives are of that particular plot. Now executors or administrators are obliged to inform the administrator.

C –      Its bizarre that there wouldn’t be a record.

P –       But we didn’t have to maintain.

C –       We didn’t have to maintain the records of who’s buried, that’s just extraordinary. And look, the other thing is when family, um, you know, depart and families end in some, you know the lineage comes to an end. There are instances where no one cares whether.

P –       Correct.

C –       That plot continues.

P –       Suppose after 99 years.

C –      That’s a sad thing, but it is a reality in some circumstances. Alright, 131873, maybe you’d like to talk about that as well. And Paul can give you a hand in what you’ve been told by a cemetery somewhere and that administration and whether its consistent with what the Cemeteries and Crematorium Bill 2013 entails, 131873. A question from Ian for you Paul. Go ahead Ian.

C1 –    Hi Paul

P –       Hi Ian

C1 –    Um, mum died a short time ago, um she’s only got cash and her house and the house is a sticking point.  Brother and sister want to repair it. I don’t want to repair it. I’m joint executor with my brother. Does my sister’s opinion count on that, because she’s only a beneficiary?

P –       Its the executors that make the decision, they’re vested with the power to make decisions in relation to the administration of the estate.

C1 –    Right.

P –       So its you and your brother.

C1 –    So its just between myself and my brother, nobody else.

P –       It’s the administrators, it’s the executors who make the decision.

C –      Not her.

C1 –    What it comes down to is that I think my brother wants to repair it. It’s going to cost about $120,000 to get it fixed and I’m maintaining that if it is repaired we’re never going to get the money back. So we’d be about $30,000 behind if we attempted to sell it. So how do we get around this problem?

P –       Um, get some advice, but if I was the executor um, wanting to spend money to improve and asset I’d have to be pretty sure that we would get back a reasonable amount, more than what we’d spent. Because then, an executor may very well be exposed to a question of not properly administering his role, and not properly administering the estate.

C1 –    I never thought of that one.

C –      So your at kinda logger heads with your brother over this are you?

C1 –    Yes

C –      Well, you both have to agree, that’s the point isn’t it?

P –       But, once you get advice, I think both of you will realise the consequences of what ever action you chose to take.

C1 –    Um-hum

C –      Alright Ian, good luck with all of that.

C1 –    Thank you very much.

C –      Paul, for Paul.

C2 –    Yes, hello?

P –       Yes Paul.

C2 –    Yes, er, brother-in-law passed away and he got a cheque from the superannuation, but they got his name on the cheque and obviously he’s passed away so all the other certificates have been done, the letter of administration, death certificate etc etc except for the probate certificate.

P –       Now you just said letters of administration. If you’ve got letters of administration you don’t get probate.

C2 –    Oh, okay

P –       It’s one or the other.

C2 –    Okay, Yes.

P –       So if you’ve got letters of administration then an estate account can be set up and the cheque can be pain into the estate account and the administrator then distributes it in accordance with the entitlements.

C2 –    Okay, so, how do we get the letter of administration done?

P –       Well, letters of administration apply where someone has died without a Will.

C2 –    That’s correct, that part. There is no Will involved.

P –       Okay, well then it’s similar to the process application. An application has to be made to the Supreme Court for Letters of Administration by someone who is say, probably a beneficiary or the next of kin. You get consents of other beneficiaries and apply to the court and you get a court order that says “so and so is appointed to administer the estate” and then the cheque can be paid into the estate account and then distributed. But you need legal assistance.  Its very difficult, if not impossible

C2 –    You need legal assistance?

P –       Yes, I would think so.

C2 –    And what would roughly be the cost of such legal assistance?

P –       Mate, with letters of administration the costs are regulated for getting letters of administration the costs are regulated by a scale. It depends upon the value of the estate. But I think to answer that question, perhaps give me a call perhaps at my office and I’ll give you an idea of the costings.

C2 –    Okay.

C –      Okay, Paul stay there.  We’ll get you a number and we’ll ensure that Bridget can give you the details that you require. I’ve got a question about the Cemeteries and Crematoriums Bill. If someone wants to have their family pay the bills for a perpetual plot is it best for them to put it in their Will?

P –       Definitely.  That was the point I was, sort of alluded to earlier, that now we have to ask a bunch of new questions about what do you want done. Do you want this perpetual or do you want the estate to continue to pay to maintain this licence or this internment. That means we would have to set up a Trust fund for a period of years to make sure that there is money there to pay for it. So I think now, see in the past because there was no, a body has no property, so whatever you put in a Will doesn’t have to be really complied with. You could say “I want to be buried, I want to be cremated” but it’s only a testamentary wish. Because half the time you’re cremated before anyone even looks at the Will. To be honest.

C –      Hum

P –       But now, we really have to start looking at the Wills first. Because there may be instructions there as to yes I want this, I want that.

C –      Before you entered into an arrangement for your loved one who’s just passed with the cemetery. Okay, alright. Now compensation can’t change the past, but it will make a difference to your future. So if you’re suffering because of someone else’s negligence turn to Turner Freeman Lawyers. Turner Freeman Lawyers are heavy hitters, the type of law firm you need on your side to win. And they’ve been winning claims for a long time. When a Turner Freeman Lawyers acts for you they draw on over 500 years of combined experience, the financial and legal resources of a national firm and a reputation as tough, uncompromising litigators who won’t rest until you get the compensation you deserve. So give Turner Freeman Lawyers a call. They have offices throughout New South Wales and Queensland. Visit TurnerFreeman.com.au to find the details of your nearest office. Turner Freeman Lawyers when you need to win your case. Just back to the Cremetiroa Act that was passed in.

P –       2 weeks

C –      I think 2 weeks ago, I was about to say that, I was about to say last month. I can’t believe we’re in December.  June wants to make a comment about it. Go ahead June, Paul is listening

C3 –    How’s your mum first?

C –      Oh, mum’s doing very well.

C3 –    I’ll speak to you next week about that.

C –      Good on you.

C3 –    Why is it that the gentleman that you’ve got there has go no idea on how much its going to cost us because when I heard that I’m thinking I’ve paid for a funeral, how much more. That question is going to be on everybody’s lips over the age of 70.

C –      Yes, so what I think June’s trying to say. Is not that you’ve got shorter term leases on plots, there’s no guarantee that your not going to pay a significant price for that lease as opposed to the price you would normally pay for plots in perpetuity. They could charge like wounded bulls could they not?

P –       I don’t know, I don’t know if that. Well, no, they’re setting up a governing body, no I don’t know the powers of this body. It may very well that they will regulate or put some limitations on it.  But you’ve still got the right to acquire a perpetual internment. So you could pay upfront or whatever you want to do.

C –      But could they be putting an excess on that and say well “you want one in perpetuity, oh well here we go, we’re gonna add”

P –       Well then the market takes control.

C –      It does.

P –       Like in everything else.

C –      That worries you though June doesn’t it?

C3 –    Yes, can I just say something else?

C –      Um

C3 –    Now, when this was first mooted I remember them talking about areas for the, look, I’m just asking questions, why is this only effecting the Christian burial areas? It will not interfere with the Jewish, and it won’t interfere with Muslims. Why is it..

C –      Well lets get Paul to clarify what the truth of that part of the story is.

P –       I don’t think that’s right June. There’s nothing in the Bill that says it only affects this or that.  It affects all cemeteries or crematoriums. What it’s saying is that there is now going to be 2 types of internment. You can have perpetual, which is basically what we have now, and I’m talking about burials I’m not talking about cremations at this stage. So you can have acquire perpetual right, which is what you’ve got now. Or you can have this, a period or what they call an internment right, which is this licence or right to occupy so to speak for a period of 25 years and up to 99 years.

C –      So there is mention of any particular religions in the act, but maybe a particular religion has rallied the government to try and give option in these cases. Maybe that’s the case, I don’t know. June there’s no mention in the act which is very different to what we first discovered.  Thank you very much for your call. Kevin go ahead.

C4 –    Yes hi, the situation is that my mother-in-law died a couple of months ago. Her three siblings, who the estates meant to be split amongst. The brother wants to stay in the house for another 7 years till he retires.  Now what are the implications because if you don’t sell it within 2 years are you up for capital gains tax, land tax and lawyers costs for another 7 years.

P –       For administering the estate. Who’s the executor?

C4 –    Um, one of her sisters.

P –       Well, the question that will, in the end, she’s got an obligation to wind up the estate. As expeditiously as she could, if one brother wants to stay in it. I would think in her role she would probably want to seek the opinion of others. Look, because as a beneficiary your entitled to say “hey I want my share now” to be blunt. And then she really has to do what she has to do.  Your right, you’ve got 1 year to sell an investment property and 2 years to sell, sorry, 2 years to sell the principle place of residence from the date of death without the estate incurring a  capital gains tax.

C –      Okay, after that information I’ve run out of time. How quick did that go this afternoon.

P –       Very quick.

C –      Paul, thank you so much for being on our program once again.

P –       Thank you Chris.

C –      From Legal Matters, Turner Freeman Lawyers, for our legal matters segment this afternoon Paul Sant.

Contact Us

Latest News and Blog

Workers Compensation: Joint replacement surgery not subject to time limitations

Important clarification of injured workers rights to medical expenses in NSW.Read More

Workplace surveillance

People often use their work e-mails for outside work purposes. People may … Read More