Funeral Planning & Legal Issues

When you die, who will decide what happens to your body?  Who will decide your burial location and the funeral arrangements?

If a daughter from an earlier marriage wants her father buried near her mother in Los Angeles but the daughter’s stepmother wants her husband buried in Southern Utah or Nevada, whose desire will prevail?  If a person wants to be cremated but never told those close to her, will she be cremated?

Answers to the above questions depend on you.  You must make the decisions in writing regarding your funeral and burial before you die.  Part of your estate planning should entail addressing these issues.

State law provides that the person named in your will (an “executor,” or now more commonly referred to as “personal representative”) shall have authority prior to appointment by the court to carry out written instructions of the decedent relating to his body, funeral, and burial arrangements.

This means two things.  First, you should have a will naming someone as executor or personal representative.  Second, you should provide written instructions to your personal representative regarding your burial and funeral arrangements.  Both of these steps are vitally important.

If you have not left a will naming an executor or personal representative and written directions (whether in your will or some other document), the law is unclear as to who has authority to make those decisions.  This uncertainty can and has lead to terrible disagreements between family members which is something everyone probably wants to avoid.

On occasion, family members have discussed with me and others in our office their desire to change, or their fear that another family member will want to change, the location of burial of a loved one.

Significantly, the courts have stated that it is a sound and well-established policy of law that a person, once buried, should not be exhumed except for the most compelling of reasons.

Because burial decisions have to be made very quickly after death and are almost impossible to change once made, you should set forth your desires regarding your funeral and burial when doing your estate planning.

Meeting with a funeral planner at the mortuary of your choice and having your desires set forth in a prearranged plan can be very helpful to all involved.

WITH A SATELLITE OFFICE IN PANGUITCH.  Jeffery J. McKenna is a local attorney serving clients in Utah, Nevada, and Arizona.  He is a shareholder at the law firm of Barney McKenna and Olmstead.   He is a founding member and former President of the Southern Utah Estate Planning Council. If you have questions regarding this article or if you have a topic you wish to have addressed in this column, you can call 435 628-1711 or email jmckenna@barney-mckenna.com.

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