Barbara is an attorney concentrating her practice on all aspects of estate planning, estate and trust administration, estate trust and fiduciary litigation, business succession planning, nonprofits, and family foundations. Barbara believes the...Read More by Author
Who Determines How to Celebrate Your Life and the Disposition of You When You Die?
An often-overlooked step in the estate planning process is determining how you want the world to celebrate your life and determining your final resting place. If not addressed, conflict may occur because different loved ones have different opinions.
In New Jersey, you have a right to make these decisions but you must document them. New Jersey Statute Section 45:27-22 states that you may appoint a person in your Will to control your funeral and the disposition of the remains. This individual is not your executor (the individual appointed to handle the administration of your estate). It is a specifically appointed individual who has the right to handle your funeral and disposition prior to the probate of your Will. This is important, because in New Jersey, a Will cannot be probated for ten days after death.
If you do not appoint an individual to handle your funeral and the disposition of your body, the same statute directs who is given such authority, in the following order of priority:
- The surviving spouse of the decedent.
- A majority of the surviving adult children of the decedent.
- The surviving parent or parents of the decedent.
- A majority of the brothers and sisters of the decedent.
- Other next of kin of the decedent according to the degree of consanguinity.
- If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.
Similarly under Pennsylvania law, 20 Pa. C.S. Section 305, you may designate a person you name before your death in “an explicit and sincere expression, either verbal or written” to make the arrangements. If you do not designated someone, then the statute gives priority first to your surviving spouse and then your next of kin.
This order of priority may match the order of preference you would give. However, this order of priority has groups of individuals that must decide by majority. Conflict may easily erupt, for example, when the three children are unable to agree. These decisions are being made at a time when emotions are raw and a minor disagreement can turn into a major argument creating long lasting negative feelings. Unfortunately, if they are unable to come to an agreement, court proceedings would have to be initiated to determine your final resting place.
Accordingly, it is recommended not only to nominate a specific individual, with specific successors, but also document in a letter your thoughts as to your celebration of life and disposition of your body. It is recommended that this letter is copied. Give the original to your attorney for safekeeping, but keep a copy in an easily accessible location, not locked, like a file drawer in your house and be sure to let your loved ones know where to find it.