The Transference of the Exclusive Right of Burial and Memorialisation
The ownership of the Exclusive Right of Burial and Memorialisation, confirmed by the issue of a Deed of Grant, becomes part of a person’s estate.
The owner can transfer the Right to another party during his/her lifetime by a Deed of Assignment for a consideration or as a gift.
On the death of the owner, the rules of inheritance apply as modified by the Administration of Estates Act 1925, which gave equal rights to all children of a marriage.
Probate of the Will
If the deceased has left a will and the estate is of a value which makes it worth obtaining probate, the Probate of the Will needs to be produced to the borough council to affect a transfer. If the Exclusive Right of Burial and Memorialisation has not been mentioned in the will the ownership would devolve upon the residual legatee(s). If the will is not proven then a declaration would be needed.
Letters of Administration
If the deceased died intestate and the estate required the obtaining of Letters of Administration, these would need to be given to the Council in order to establish the new ownership.
Where the estate does not require Letters of Administration it is necessary to obtain a Statutory Declaration. The declaration would be made before a Justice of the Peace or a Commissioner for Oaths by the person wanting to establish the new ownership. It will state the exact position regarding the original acquisition of the Right and the subsequent death and estate of the deceased owner and recognise the new legal grave owner.
The declaration will also include an indemnification clause indemnifying the borough council in the case of any action challenging the new registration.
Upon receipt of the completed declaration the council would transfer the Exclusive Right of Burial and Memorialisation to the new owner(s) and keep the declaration on a special transfer file.
Once the new ownership has been set in place it will be possible for the new owner to assign the Right to whomever he or she wishes.
Permission To Open A Grave
Another misunderstanding is that the borough council can open a grave without the owner(s) permission or on receiving an indemnity from a third party. This is not true. You cannot be indemnified for committing an illegal act and the council, as the custodian of the cemetery, would be at fault if it allowed any person to use a grave where it was known there was a legal owner. The indemnity would be no legal defence.
Do you have to Transfer the Grave Ownership?
It is not necessary for there to be a legal grave owner(s) of an existing grave space and a transfer of the Exclusive Right of Burial and Memorialisation does not have to take place if there is no one willing to take over the remaining lease of the grave.
Another misunderstanding is that without a legal owner the plot will still be used for interments if there is space in it. This again is not the case. The grave will not be re-opened for further burials and the borough council will continue to maintain the grave area.
If there is no legal owner then a memorial headstone cannot be erected on the grave space and further interments in the grave cannot take place. If a memorial stone has been removed for a burial to take place then the stone cannot go back onto the plot unless a transfer of ownership is completed. Without a legal owner only a memorial vase is allowed.
There is a charge for transferring the exclusive right of burial and memorialisation and the production of a new grant of deed for the grave space. Prices are available from the cemetery office.
Last updated 13 August 2019