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Written by Mitch Tapner.
7 minute read
You might be asking this ahead of a cremation, or because something’s changed and you’re not sure where that leaves things. Either way, this is general information, not legal advice. For your specific situation, a solicitor or your funeral director is the right person to ask.
Key takeaways:
Typically, it’s the person organising the funeral, usually the next of kin, who signed the cremation paperwork (sometimes called the applicant). This is generally the deceased’s executor or a ‘near relative’ aged 16 or over, and they give written instructions for what happens to the ashes, including who will collect the ashes from the crematorium.
Ashes aren’t legally considered property under UK law, sometimes referred to as the ‘no property in a body’ rule, so this is about responsibility rather than ownership in the usual sense. Understanding ashes rights can help clarify who has authority to make decisions about the ashes and what that responsibility involves.
Where there’s no will, the intestacy rules usually determine who can take responsibility, starting with a surviving spouse or civil partner, followed by children, parents and then siblings. One reason people choose an executor when making a will is to make it clearer who should deal with their affairs after they die. In practice, families may agree who should take charge, but when someone dies without a will, there can be additional steps involved in establishing who has authority to deal with their estate and funeral arrangements.
This is the situation people are often most unsure about. If the applicant dies, or becomes unable to act, before completing their instructions, direction can then come from that applicant’s own executor or estate administrator, or an attorney if they held power of attorney.
The right to decide doesn’t disappear; it passes to whoever is legally responsible for that person’s own affairs. The crematorium or funeral director can talk you through who that is in your situation.
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Disagreement here is more common than people expect. Mediation is usually the best first step: it’s faster, less costly, and less adversarial than going to court. If agreement genuinely can’t be reached, the Chancery Division of the High Court has the power, under section 116 of the Senior Courts Act 1981, to resolve disputes like this, including by appointing someone to administer the estate.
Courts tend to weigh things like decent and respectful disposal without unreasonable delay, the deceased’s own wishes if known, the wishes of family and friends, and the location the deceased was most connected to.
Worth knowing too: whoever ends up holding the ashes isn’t seen as their outright owner. They’re generally expected to act a little like a trustee, weighing the wider family’s views and the deceased’s wishes, rather than simply doing as they personally please. If you’re facing an active dispute, speak to a solicitor early.
If the ashes are still held, not yet scattered or interred, instructions can usually still be updated. If you decide to scatter ashes, however, it’s worth being certain about the decision beforehand: once they’ve been scattered, this generally can’t be undone because they’ve mingled with the earth, water or wind.
Buried ashes are slightly different: moving them is technically possible, but only with an Exhumation Licence from the Ministry of Justice (or the Sheriff Court in Scotland), and these tend to be granted only in exceptional circumstances, not simply a change of heart.
A change in family circumstances afterwards, a falling-out, a divorce, a will coming to light later, doesn’t itself unwind a decision already lawfully carried out. If you’re asking this because something’s changed since ashes were dealt with, that’s a difficult position, and one worth discussing openly with a solicitor rather than assuming nothing can be done. Making wishes about your ashes part of end-of-life planning can help avoid uncertainty later by giving your family a clearer idea of what you’d want.
If Aura is carrying out a direct cremation for your family, it’s worth knowing what to expect afterwards: we hand-deliver ashes back to you in a dignified scatter tube, rather than posting them, so there’s a person to hand them to and a moment to talk through anything you’re unsure about. It’s one less thing to wonder about at an already difficult time.
Whatever stage you’re at, whether you’re planning ahead or need to arrange something now, our team are happy to talk it through, with no pressure.
Typically, whoever organised the funeral and signed the cremation paperwork: usually the deceased’s executor, or a near relative aged 16 or over. Ashes aren’t legally property, so this is about responsibility rather than ownership.
Crematoria don’t hold ashes indefinitely. If nothing is collected and no instructions were left, they’ll typically wait a few months, often one to three, before respectfully burying or scattering the ashes themselves, usually after trying to make contact first.
Only in exceptional circumstances, such as where the applicant may have been involved in the death. This is a narrow discretion the cremation authority holds, not something that happens routinely.
Direction can then come from the applicant’s own executor or estate administrator, or an attorney under a registered power of attorney. The crematorium or funeral director can help identify who this is.
Yes, disagreements can be resolved through mediation, or, if needed, through the Chancery Division of the High Court under section 116 of the Senior Courts Act 1981. Speaking to a solicitor early is generally the most useful first step.