“THE LEGAL CORNER”
By Sam A. Moak
Disposition of Remains
The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
You might not believe it but some families argue upon the death of a loved one. They can argue over money, sentimental items, paying bills, and even what to do with their loved one’s remains. Generally, as a parent, you know your children better than anyone else. Therefore, you have a pretty good idea of whether or not there will be any “controversies” after your death. The best way to avoid any arguments, and to ensure your wishes are followed, is to have a well-written Last Will and Testament.
One of the more common issues that can be avoided is what to do with the decedent’s remains. Unless a decedent has left directions in writing for the disposition of the decedent’s remains, the following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent’s remains AND are liable for the reasonable cost of interment:
(1) the person designated in a written instrument signed by the decedent;
(2) the decedent’s surviving spouse;
(3) any one of the decedent’s surviving adult children;
(4) either one of the decedent’s surviving parents;
(5) any one of the decedent’s surviving adult siblings; or
(6) any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.
A Will can serve as a written and signed instrument. Generally, the surviving spouse knew the decedent well enough and the family respects their wishes. A real problem can arise if there is more than one child because the law does not designate which child has authority over the other. There can be greatly divided opinions about the type and place of interment between children or siblings. Notice a girlfriend or boyfriend is not listed. This too can cause real disagreement if the decedent was cohabitating with another, but was not married and left no written and signed instructions.
If the directions are stated in the decedent’s Last Will and Testament, then they must be followed immediately and without the necessity of probate. There may be other reasons for probating the Will later.
Note that the written and signed instructions do not have to be in a Will. They could be in a prepaid funeral contract or a written instrument signed and acknowledged by the decedent. Acknowledged means the writing must be notarized at the time the decedent signs the written statement. The written instructions should name a designated agent for making sure the wishes stated are followed and it is a good idea to name at least one alternate agent. Additionally, and most importantly, the written instruction should state clearly the special instructions as to the interment the decedent has.
While not necessary, however, it may be required by the funeral home, crematory or cemetery organization, it should state they are not liable due to reliance on the instrument.
If you want the freedom to decide how and where your remains will be handled and distributed when you die, you should consult with an estate planning and probate attorney. If you are considering entering a contract with a funeral home, then be sure to discuss this matter with them. Plan to avoid arguments and controversy to make things easier on your loved ones.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.