What the right lets its holder do
In NSW, the holder of an interment right is the person who can authorise a burial in the site, the putting up and upkeep of a memorial, and any disturbance of the remains. The holder is whoever the cemetery’s register names, and a right can be held by one person or jointly by several.
Victoria’s Department of Health describes much the same powers for a right of interment, each one subject to the cemetery trust’s approval, its fees and its conditions: allowing a burial, putting up or changing a memorial, supporting or opposing an application to exhume, and allowing ashes to be removed.
South Australia’s Act comes at it from the other side and lists what the cemetery owes the holder. It must allow the burial at the site named in the right, allow a memorial it has approved, and leave the remains undisturbed for as long as the right is in force (section 30).
How long a grave is held, state by state
The biggest difference between the states is time. Some grant a grave forever; others grant it for a term that has to be renewed, or the site may one day be used again.
| State | The right is called | How long it lasts for a grave | When a term runs out |
|---|---|---|---|
| New South Wales | Interment right | Perpetual, or renewable. A renewable right for a burial has an initial term of 25 years and is renewed at least five years at a time, to no more than 99 years in all (Cemeteries and Crematoria Act 2013, section 54(1) and (3)). | The operator must take reasonable steps to notify the holder and any secondary contacts at least 12 months ahead. A right not renewed before its term ends expires; the former holder may apply for a new right to the site no later than two years after expiry, but a joint holder who has not applied for the right to be renewed is not entitled to; after those two years the operator may reuse the site (sections 54(5) to (7A) and 55). |
| Victoria | Right of interment | Forever. Any place that can hold a body, such as a grave, vault or crypt, must be granted in perpetuity. | There is no term for a grave. A right never used can be cancelled after 25 years (Row 6). |
| South Australia | Interment right | For the period the right states, or in perpetuity (section 31). | The cemetery must take reasonable steps to send written notice at least 12 months ahead, and must renew on application and payment for at least five years (section 32). |
| Western Australia | Grant of right of burial | Perth’s Metropolitan Cemeteries Board gives a grant a tenure of 25 years, which can be extended. | The Board takes enquiries about buying the grant for a family grave again after it has expired. |
| Tasmania | Exclusive right of burial | Absolute, or for a term of at least 25 years that may be renewed on terms agreed with the cemetery manager (section 41). | Renewal is by agreement. The manager must give the holder a certificate of the right when it is granted. |
Before 2018, NSW had no formal renewable rights, and a right sold before then is taken to be perpetual unless its original terms say otherwise.
The paperwork that comes with a right
Since 1 October 2024, a NSW cemetery operator selling an interment right must use a consumer contract. Three documents go with every new right: the application, the contract and an interment right certificate. A funeral director may sell a right on the operator’s behalf, but must use the operator’s own paperwork.
A NSW operator also cannot grant someone a right that would leave them holding more than two unused sites, or more than 10 sites in total, in the same cemetery, unless Cemeteries & Crematoria NSW approves.
In South Australia, the cemetery must hand over a written statement in plain English before it issues a right. It covers who may be buried and where, how long the right runs and how it can be renewed, whether it can be transferred or cancelled, the rights and responsibilities around any memorial, the cost, and any way of paying it off over time (section 30).
Room for more than one
Some graves can take more than one burial, depending on the site, and Cemeteries & Crematoria NSW suggests talking to the operator about what a family needs.
In Victoria, the trust checks before a second burial that the grave is deep enough under the minimum depth rules. Where it is not, a lift and reposition procedure can raise the earlier remains and deepen the grave. It needs the trust’s written approval rather than an exhumation licence, and a trust cannot approve it until the earlier remains have been buried for 10 years.
South Australia’s Act allows the same idea under another name: at the holder’s request, the cemetery may lift and deepen a site so that more remains can be buried in it (section 30).
When the holder dies
In NSW and Victoria, a right held jointly passes to the surviving holders. A right held by one person becomes part of their estate: it can be left to someone in a will, or it passes under the rules that apply when the will does not leave it to anyone.
In NSW, a right the holder did not bequeath is dealt with as if it were part of an intestate estate (section 50(1)), so the people who take it under the intestacy rules apply to the operator with proof such as letters of administration.
The change is not automatic. In NSW the new holder applies to the operator with documents that show they are entitled, and nothing changes until the register is updated. A Victorian trust does not look into who inherits a right; the people interested in it must give the trust evidence, such as a will. In South Australia, a right whose holder has died may be exercised or enforced by the holder’s personal representative or, if there is no personal representative, by a person determined in accordance with the regulations (section 35).
Example only, under Victoria’s rules
Two partners hold a right to a family grave in a Victorian public cemetery jointly. When one dies, the survivor becomes the sole holder without any further step. When the survivor later dies, their will leaves the estate to three children equally but says nothing about the grave. Victoria’s Department of Health says a right left to no one by name usually forms part of the estate, so the three children, as the estate’s beneficiaries, can give the trust evidence such as the will and be recorded as joint holders.
Rights can also change hands during the holder’s life. In South Australia a right may be transferred, but for no more than the current fee for the same kind of right, and the transfer only takes effect once the cemetery records it (section 33).
Rights that are never used
Three of the states covered here have a way to recover sites that were paid for and never used.
- Victoria. A trust may cancel a right that has gone unused for at least 25 years if, after diligent enquiry, it cannot find the holder. It must advertise in a local newspaper at least 14 days beforehand. If the holder turns up later, the trust must refund the right at today’s price, less an administration fee, or give an equivalent right at no charge.
- New South Wales. An operator may revoke a perpetual right that has not been used within 50 years of being granted, after following the regulator’s notification guidelines. The holder is then entitled to a perpetual right over another site in that cemetery, or to half the current fee for a comparable site, at the operator’s choice.
- South Australia. A holder may hand back a right that has never been used, with no burial and no memorial, and receive the current fee for that kind of right less reasonable charges set by regulation (section 34).
In every case the cemetery’s register is the record that counts, and it relies on the holder’s contact details being current. Victoria and NSW both put keeping those details up to date on the holder.