Authorities can grant, under Article 10(1) of the Local Authorities Cemeteries Order 1977, on such terms and subject to such conditions as they think proper, the Exclusive Right of Burial in a grave.
The rights subsist for the specified period detailed in the grant, since April 2014, for those cemeteries managed by Chesterfield Borough Council; this period will be for 50 years.
Only the registered owner has the right to allow a burial to take place in the grave. No person can be buried in a grave and no memorial may be placed on the grave without the written permission of the grave owner during the period of the Exclusive Rights of Burial. The registered owner of the Exclusive Right of Burial has the automatic right to be buried in the grave or to allow others to be buried in the grave (space permitting).
Ownership of the Exclusive Right of Burial is very important. Ownership can be transferred either during the owner's lifetime or after their death.
As a burial authority we have a responsibility to ensure that the rightful person has given consent for the grave to be opened, in order for us to do this we need to have the grave deed produced and the interment form signed by the registered owner of the grave. Where the deed cannot be produced, we will require the registered grave owner to make a statutory declaration that the deeds have been lost and that the Exclusive Right of Burial has not been assigned to another person.
We will require the declaration to be made prior to the interment taking place, it is imperative therefore that the ownership of the grave is checked at the time of making the booking and that the grave owner is advised to contact us immediately if they are unable to produce the deed.
When to transfer ownership of the Exclusive Right of Burial
In the following circumstances transfer of the ownership will be required:
- the registered owner decided to assign the grave to someone else
- an application is made for a burial in the grave but the registered owner is previously deceased
- an application to place a memorial/additional inscription on the grave is made but the registered owner is previously deceased
- if the registered owner has recently died, this makes future arrangements easier if there is a living registered owner
Guidance on Transfer of Grave Ownership
The council must obey the law relating to ownership of graves and burials.
The Department for Constitutional Affairs (now Ministry of Justice) issued its document entitled Guide for Burial Ground Managers in 2005. This document was drafted under the scrutiny of the Burial and Cremation Advisory Group at which all funeral industry organisations are represented.
The guide contains the following clause:
2.28 An exclusive right of burial may be transferred on the death of the registered owner to the person or persons entitled to it. A burial authority should satisfy itself that the person or persons wishing to take up the ownership are entitled to do so by the production of a grant of probate or letters of administration. If these legal documents have not been applied for or issued, the authority may accept a statutory declaration from the nearest surviving relative(s).
Guidance in this regard has recently been issued via a newsletter from the Institute of Cemetery and Crematorium Management and a copy of this can be obtained from the Cemeteries Office.
Procedures adopted from 1 June 2014
- when a grave is being re-opened, we will require the grave deed to be submitted. If the deed has been lost we will require a statutory declaration setting out the reasons why the deed cannot be supplied
- the grave owner has the right to be buried in the grave, when the grave owner is buried in the grave, we will write to the person arranging the funeral to advise them that the ownership must be transferred
- if the grave owner is deceased and the grave is to be re-opened for the burial of another person, the ownership will need to be transferred prior to the burial taking place
Documents required in order to register a transfer of ownership:
- grave ownership must be established at the time of booking the burial, where a transfer of ownership is required, the family must be asked to contact the office immediately in order to avoid any delays
- we will accept the funeral booking, but sufficient time must be left between the booking and the interment to enable the transfer of ownership to be completed
Bereavement Services staff will deal directly with the person making funeral arrangements, for information the following documents will be required:
Assignment of Exclusive Right of Burial
Used by a living owner to transfer or change the ownership of the exclusive Right of Burial ie to transfer to a new owner or add an additional owner.
Grant of Probate
Granted to the executor/s of a Last Will and Testament once a document has been proven in Court. To be legally acceptable we can only accept sight of a "SEALED" Grant; ie it must bear the embossed seal of the court or the holographic seal.
Obtain copies of Grant of Probate.
Letters of Administration
When a deceased person dies intestate then the next of kin can apply to the Courts to be made Administrator of the estate. An Administrator receives the same powers to administer the estate of the deceased as an executor.
Assent of Executor or Administrator
Used to transfer ownership from an executor or administrator after ownership has been transferred into their name by production of Probate or Letters of Administration.
Statutory Declaration
Used to transfer ownership from a deceased owner when no official documents have been issued. Declarations can be either based on a Will that did not go to probate, claiming ownership by the executor or by the Next of Kin if the deceased left no will.
Form of Renouncement
Used together with a Statutory Declaration when more than one person is entitled to the ownership ie the deceased may have three children and next of kin, and one or more of those children wishes to give up their Rights to the ownership.
All certificates supplied with transfer applications must be originals or certified copies.