Published on:

Who Has the Right to Plan My Funeral?

Many people do not bother to plan for their own funerals. They just assume their family will take care of the arrangements when the time comes. If there is disagreement among family members, however, a funeral can quickly turn into a financial and legal battleground. This is why it is a good idea to consider who should plan your funeral as part of your overall estate planning.

Disinheritance Does Not Apply to Funeral Arrangements

Recently, a court in New Jersey had to deal with the fallout from a contested funeral plan. A woman with three adult children passed away. Her will left nothing to the children. The will further stated her estate should pay any “just debts and funeral expenses,” but made no other provision regarding the planning of the funeral itself.

The decedent’s brother, who was also the executor of the will, wanted to hold the service at a funeral home run by his nephew, who quoted him a “family discount” price of $13,000. The decedent’s children, on the other hand, wanted to hold the funeral closer to their mother’s home. They arranged for a funeral at a facility that charged more than $30,000.

The brother/executor refused to pay the higher bill. Litigation ensued between the brother, the children, and the funeral home. One issue that came up was who exactly had the right to plan the funeral. The brother argued that since the children were disinherited in the will, then he had the legal authority to “direct the funeral” as he saw fit.

A New Jersey appeals court disagreed. The court noted that under state law, unless a decedent leaves explicit instructions in their will to the contrary, then the surviving children (if there is no surviving spouse) has the “right to control the funeral and disposition of the human remains.” Here, the decedent’s will said nothing on this subject, so the children had a “higher priority right” than the brother to plan the funeral.

Taking Charge of Your Own Funeral

California law is similar to that of New Jersey’s on funeral rites. Specifically, if a person leaves no written instructions on who should control their funeral and disposal of remains, then the right belongs, in order, to the surviving spouse, a majority of the surviving adult children, the surviving parents, or a majority of the surviving adult siblings. But a California resident is free to override these defaults by leaving written instructions.

First, you can sign a power of attorney for health care. This is a document naming an agent to make decisions for you while you are still alive. However, you can also grant your agent the power to oversee your funeral, burial, and/or cremation arrangements.

Second, you can include language in your will designating someone to plan your funeral. This does not necessarily have to be the executor of your estate. Nor does it matter if the person named is a beneficiary under the will.

Third, you can simply prepare a separate written document expressing your wishes. This is especially useful if you have already purchased a prepaid funeral plan. In this case, there is nothing for your family to do, since you have already made the arrangements.

Whatever you decide, do not leave your family guessing as to what kind of funeral or memorial service you wanted. A qualified San Diego estate planning attorney can advise you on handling this and many other subjects. Contact the Law Office of Scott C. Soady to speak with an attorney today.

Contact Information