Transfer of exclusive rights of burial
Guidance on the transfer of exclusive rights of burial in local authority cemeteries
by the Institute of Cemetery and Crematorium Management (ICCM)
Introduction
The Local Authorities’ Cemeteries Order 1977 (LACO) permits burial authorities to grant the exclusive right of burial in any grave or vault to any person. Once the rights have been granted, no burial can take place in the grave without the permission of the owner of the rights. This legal requirement can lead to complications where a burial is required but the ownership has to be transferred before it can happen.
The ICCM has developed a practical and lawful methodology for transferring ownership and provides training on this important issue. This guidance document is a brief summary of that process and has been produced to assist funeral directors, arrangers and burial authorities to offer best advice to families and to reduce the number of occasions when a burial may be delayed due to ownership issues.
Burial authorities will make every effort to assist with ownership issues in order to avoid having to postpone or cancel a burial. It may occasionally be necessary to do this, however, where the permission of the owner is not forthcoming in time or at all. Burial authorities cannot break the law; therefore, they cannot allow a burial in a grave unless the permission of the owner is given.
1. Legal position
LACO requires the written consent of the registered owner of the exclusive right of burial before any burial can take place. Article 10(6) states: “No body shall be buried, or cremated human remains interred or scattered, in or over any grave or vault in which an exclusive right of burial for the time being subsists except by, or with the consent in writing of, the owner of the right.”
In most circumstances therefore, if the written consent of the owner is not obtained, the burial cannot take place. However, Article 10(6) continues: “This paragraph shall not extend to the body, or remains, of the person who immediately before his death was the owner of the right.”
This means that the burial of the registered owner can take place without their written permission, and without a transfer of ownership being required prior to the burial. In these circumstances it is recommended that the ownership is transferred following the burial to protect the family’s interests in the grave.
LACO specifies that the exclusive rights of burial may be “assigned by deed or bequeathed by will” (Schedule 2, Part II, paragraph 3). This means that if the registered owner is alive and wishes to give the rights to somebody else, they must complete a form of assignment in order to do so. If the registered owner is deceased, the transfer will be dependent on whether they left a will and whether probate was granted, or if no will was left, whether letters of administration have been gained for administering the estate of the deceased.
If a will has not been left and letters of administration have not been gained, rules of intestacy should be used to determine who is entitled to the exclusive right of burial.
2. Process
Funeral director/arranger: When a burial in an existing grave is required, ask the family if they are aware of who the owner of the exclusive right of burial is, and ask if they have a copy of the deed. If the ownership is not clear, contact the burial authority as soon as possible to check the ownership details. Be aware of the timescale that may be required if there are any issues with the ownership.
Burial authority: On request from the funeral director/arranger or the family, check the Register of Purchased Graves/Grants for the grave in question and confirm ownership.
2.1 Registered owner is living
Funeral director/arranger: If the registered owner is living and is your client, request that they complete the details on and sign the burial authority’s form requesting the opening/reopening of the grave (and any other form required by the burial authority).
If the registered owner is living and is not your client, request that the client takes or sends the required form(s) to the registered owner for them to complete and sign. It is important that due consideration is given to the timescale to allow the burial to proceed.
If the owner has the deed, submit this to the authority with the burial paperwork and inform your client that the deed will be amended with information about the burial and returned to the owner following the burial.
Burial authority: On receipt of the signed form(s), check the details against your Register of Purchased Graves/Grants to ensure that the current owner of the exclusive right of burial has signed and given their consent for the burial. If the deed has been submitted, amend it to show the burial and return it to the owner.
2.2 Registered owner is the deceased and is to be buried in the grave
Funeral director/arranger: Your client will need to complete the details on the burial authority’s form(s), including their full name and address. Advise your client that, following the burial, the burial authority will contact them to advise that a transfer of ownership should take place to secure the family’s rights into the future and prevent any delay with adding an inscription to the memorial. Transferring the ownership will also help to prevent any delays with future burials.
If your client has the deed, submit this to the authority with the burial paperwork and inform your client that the deed will be amended with information about the burial and the new owner once a transfer has taken place, and will be returned to them.
Burial authority: Following the burial of the registered owner you should write to the applicant to advise that a transfer of ownership should take place. You should include details of the legal process for this to happen and of any required fees, and contact details for where the applicant should send the required information. Once the required documentation and fees have been received, transfer the ownership and update your Register of Purchased Graves/Grants. Amend the deed with the new ownership and burial details and return it to the new owner.
2.3 Registered owner previously deceased
In some instances the registered owner may be deceased, and no transfer of ownership has taken place. If a family requests a burial in a grave in these circumstances, a new owner must be registered before the burial can take place.
Funeral director/arranger: When booking a burial in these circumstances, advise your client to contact the burial authority without delay. The burial authority will then liaise with your client to transfer the ownership by a lawful method as soon as possible. Liaison between yourself and the burial authority is essential to stay informed of progress with the transfer. Once the ownership has been transferred, the new owner will need to complete and sign the burial authority’s form(s) as in 2.1 above.
Burial authority: You must inform the funeral director/arranger that the applicant for the burial must contact you to arrange a lawful transfer of ownership before the burial can take place. You should meet with and/or discuss the mechanism of the transfer with the applicant as soon as possible to avoid any delays with the burial. Keep the funeral director/arranger informed of progress with the transfer so that consideration can be given to changing the date of the burial if necessary. Assist the applicant as much as you can with any documentation required to make the transfer, including drawing up a statutory declaration if required. Once the required documentation has been obtained, complete the transfer and register the new owner in your Register of Purchased Graves/Grants. On receipt of the burial paperwork, check the ownership details on the form(s) against those in your register as in 2.1 above.
 | The ICCM The Institute of Cemetery and Crematorium Management promotes the development, advancement and welfare of members to facilitate the better provision, operation, administration and management of cemeteries, crematoria and bereavement-related services through training, education and best practice guidance. The ICCM offers both professional and corporate membership options, with annual membership for a town or parish council being £95.00. Benefits of membership include:
Bespoke courses can also be arranged on request. Further information can be found on the ICCM website at www.iccm-uk.com |