A common trend for high net worth individual (HNWI) clients in an increasingly global world is the tendency for both themselves and their families to have business and personal interests located overseas. This usually means they have an extensive travel schedule, spending significant periods of time outside of England and Wales. Sadly, this can inevitably lead to situations whereby advice is required following a death abroad.
Naturally, losing anyone we love is an incredibly difficult and turbulent moment. This is made all the more difficult when that person dies in a different country, and you want to bring them home. The first step is to find out what the circumstances surrounding that person’s death and ultimately where they have been laid to rest. Depending upon the country in which they died, some of these arrangements might be easier to make in person than over the telephone or email.
However, it will be necessary to plan on the assumption that the process may be complicated, emotionally taxing, expensive and require considerable coordination between multiple agencies. You will also need to be mindful as to who has the legal right to dispose of the body.
So, the key questions are:
How are the remains or body to be brought back?
This first question relates to what is called repatriation. Repatriation is the process whereby human remains are transferred from a foreign territory to the native country of the deceased. This article focuses on the steps to repatriate the body to England and Wales.
Who can make any decisions about a person’s body or remains?
This second question can unfortunately result in quite a bit of argument amongst family and friends. This is especially true if the deceased person had given instructions over the years – sometimes differing – to one or more individuals.
Before considering the repatriation process, it is worth briefly touching on the law in this country as it relates to dead bodies. A dispute over the body may arise either before or after repatriation of the body.
In English law there is no ownership in a dead body ie no one person can claim to ‘own’ one as if it is their property. The law only imposes duties on certain people to dispose of the body properly and, of course, that will entitle them to control of the body, for the purpose of disposal only. The personal representative (ie executor or administrator) has the primary right to dispose of the body.
However, if this right is challenged and there is a dispute, then an application can be brought for the court to determine the matter. This is the position under English law and even in this jurisdiction, complications arise with the use of ‘next of kin’ – often seen in medical notes.
Clearly, there are differences between foreign jurisdictions as to the relevant protocols for repatriation. However, there is helpful guidance and some common themes below which should be of practical help.
The initial step is to contact the local authorities in the country where the person has died. The British embassy in the relevant country, travel insurance broker, and tour operator (if relevant, and if the deceased was traveling at the time) should be notified.
The British embassy will be of use if there are language barriers and should be useful when it comes to obtaining the documents necessary to register the death (eg medical cause of death certificate). It may even be possible to register the death with the English authorities at the same time.
It may also be worth asking if any consular officials can act to preserve the dead person’s estate in the short term if no other legal representative is present in the foreign country where the death occurred.
Steps will need to be taken to formally identify the body as soon as possible. The rules on who can identify the body will depend on the country in which they died. Lots of countries will allow a travelling companion or business partner to identify the body, but some may require a family member to travel to the country of death.
A funeral director is appointed within the country where the person has died (whether by the family, embassy, or tour operator) to prepare the remains for repatriation. It may even be appropriate to ask if the funeral director can organise the transportation, prepare the documentation, obtain the death certificate, and liaise with a funeral director in the country of destination.
The key contact to coordinate the appointment of the funeral director in the country that the person has died can itself be a point of contention. Often, depending on the jurisdiction, speed may be of the essence so that the individual with authority to dispose of the body in England and Wales (usually the executor) is not undermined by a proactive family member.
If you are involved in repatriating a body to England and Wales for burial or cremation, there are several documents you will most likely need.
You should obtain the death/medical certificate, which should be registered in the country where the person died. After the death certificates have been obtained, you should look to get permission from the coroner in the country of death to transport the body back to this country. You should obtain certification as to whether a post-mortem examination has been carried out, and also notify the coroner (in England and Wales) if the death was unexpected, accidental, or violent etc, as it may be necessary for an inquest to take place and a second autopsy conducted (more on this below).
You will also need to arrange for an English translation of the documents and make sure that it is a certified copy. You should not begin funeral arrangements until the documents have been cleared by the coroner.
Finally, it will be useful to find and keep hold of the passport of the deceased for identification purposes.
Embassies will not generally fund the cost of the repatriation of the body or remains; this cost is usually picked up by the family and/or the estate of the deceased. There may be insurance cover in place and potentially assistance from certain charities or trusts. The costs vary depending on the country but can be as high as tens of thousands of pounds. The key considerations when it comes to costs are the distance and the weight of the cargo.
The body is usually transported by air, but less frequently it is brought back by road or sea. It may be possible for the family and/or friends to accompany the body on its journey back. A specific type of coffin is needed for repatriation by air or sea; you will need to check the position, but frequently they must be metal-lined (zinc or lead linings). A point to note is that these coffins are not suitable for cremation, and you must make additional arrangements if cremation is required on return to this country.
The logistics of transporting the body from the airport presents its own requirements.
You should be given an air waybill number for the cargo. This is important as a means of identifying the body in transit and to allow the funeral director to claim the body for preparation ahead of the funeral. It will be necessary to pay customs clearance and airline handling charges, but the funeral director can settle this on your behalf if you authorise them to do so, and comply with their requirements ahead of arranging the transport, which may vary between funeral directors.
The funeral director may even be able to assist with the translation of documents, if this has not been done, and the provision of the documents to the coroner.
On return of the body to England and Wales, the coroner will review the documents supplied and decide if an inquest is necessary.
If so, this will be arranged before the body can be released for cremation or burial.
If not, the next step is to obtain a certificate of no liability from the registrar of the sub-district where the funeral will take place.
The funeral director should be able to attend the registry office and arrange this certificate on your behalf.
The arrangement of the funeral back in this country is the final step, although if you have been working with a funeral director throughout, then they are likely to have advised you in respect of the funeral itself.
There are several other points that may arise from a death abroad which can throw up additional legal issues. These questions that may include:
It is always best to seek legal advice if any issues are thrown up as a result of a loved one’s death, or to check the legal position for your own peace of mind.
Please note that this article is a general guide and is not intended to provide legal advice. You should seek your own legal advice concerning any relevant issues you are facing or please feel free to contact us if you would like our assistance with your specific matter. This firm has experience of advising on such issues, as well as acting as the single point of contact for the coordination of legal advice from lawyers in foreign jurisdictions.