From time to time, a client will ask me to write a funeral instruction into his last will and testament. Whatever the directive may be, the client is concerned that family members might be unaware of his wishes with regard to his funeral or that the family may not obey his wishes.
My advice to the client—Your Will may not be the best location to place a funeral instruction. If it makes the client feel better, I will draft the instruction into the Will, but I also tell the client my thoughts on the issue and provide, what I believe to be, good advice.
A Will cannot be admitted to probate until ten days after a person has died. Many people don’t probate the Will until weeks, or even months, after the person’s death.
Typically, after a person dies, the family is shocked and profoundly saddened. Most people—or so I would like to believe—don’t begin a scavenger hunt for the decedent’s Will in the days immediately following a family member’s death.
At the very least, let’s say that your Will isn’t found until five days after your death. How valuable will your funeral instructions contained in the Will be? Chances are quite high that after five days, either your funeral is a fiat accompli or that the plans have already been made and, at least in part, paid for.
There is a statute in New Jersey’s Probate Code—the series of laws governing estates—that permits the person named as the executor in the decedent’s Will to carry out the decedent’s funeral instructions prior to the Surrogate’s Office appointing the executor. But once again, that assumes that your executor finds your Will prior to your funeral. (A person names an executor in his Will; however, that person does not officially assume the role as executor until the Surrogate has admitted the Will to probate and issued “letters testamentary” to the person named as the executor.)
I provide my clients with a “letter of instruction.” This letter, in part, permits the client to provide funeral instructions. I advise the client to complete the letter of instruction and to provide the letter to family members, particularly the person he has named as the executor.
In this way, the person you have named as the executor will know your wishes before your die, so he won’t have to find your Will to know what he’s suppose to do. If you wish, you could then include the instructions in your Will, but in my opinion, the letter of instruction should suffice.
As for family members not obeying your wishes—for instance, perhaps you want to be cremated, but your family wants you to be buried in a family plot—that’s a tougher issue. After all, when it comes time to carry out your funeral instructions, you’re dead, so you can’t really fight for your rights.
Once again, I think providing your instructions in the “letter of instruction” is very helpful. If you believe that some of your family might not obey your wishes, you might consider providing the letter of instruction to multiple family members, so all of your “important people” are knowledgeable of your wishes.
You might consider naming a person as executor who you believe will carry out your instructions.
Finally, you might consider prepaying for your funeral. If you spend thousands of dollars on your funeral wishes, your family might be reluctant to make different arrangements that will cost more money.
In sum, in my opinion, funeral instructions in your Will is like putting a spare key to your house under the area rug on the inside of your front door. While you might know where the key is, it’s not going to help you very much when you need it.