Controlling Your Funeral

In the past month, I have been involved in several discussions with clients and other elder law attorneys about the right of one person to control the funeral of a deceased person. For most people, the family simply agrees as to how the body of a deceased person should be disposed. Perhaps the decedent told his family what type of funeral he wanted and the family makes the appropriate arrangements after his death.

But what if there is a dispute about how the decedent wanted to be buried? For instance, assume that Mr. Smith dies. At the time of his death, Mr. Smith is a widower. He is survived by his two sons. One of Mr. Smith’s sons claims that Mr. Smith wanted to be buried next to his wife. The other son claims that Mr. Smith told him he wanted to be cremated. Who gets to control Mr. Smith’s funeral?

Assume further that the son who claims Mr. Smith wanted to be cremated in the executor of Mr. Smith’s estate. Does this change your opinion regarding who can control Mr. Smith’s funeral?

There is a specific statute that permits an individual in his last will and testament to appoint a “funeral agent” to control his funeral and the disposition of his bodily remains. Essentially, what this statute says is that a person in his Will can appoint another individual to arrange for his funeral and the dispose of his remains. Such a person is commonly referred to as a funeral agent.

The funeral agent may or may not be the executor of the estate. From a practical standpoint, it may be appropriate to name the same person as the funeral agent and the executor of your estate since the executor is the individual who has access to your assets after you pass away and can directly pay the funeral home from your assets.

Having a named funeral agent can be particularly beneficial in certain circumstances. In the past several years, funeral homes and cemeteries have become increasingly reluctant to cremate an individual in the absence of a clear mandate from the decedent’s family.

Unlike a burial, which can rather easily be reverse, cremation is irreversible. Funeral homes are concerned that after the cremation, some family member—perhaps a family member who was unknown to the funeral home—will present herself and claim that the decedent never wished to be cremated. The family member may even sue the funeral home for performing the cremation.

If you name a funeral agent in your Will, then the funeral home can, by law, rely on the representations of the funeral agent as to your wishes. Having a funeral agent could be the difference between your final wishes being carried out or not.

The same law that creates the position of funeral agent states that if there is no nominated funeral agent, then the decision regarding the funeral and the disposal of your bodily remains is handled by your relatives in the order in which they bore a relation to you in life. For instance, the first order of priority to handle your funeral would fall to your spouse. If you were not married at the time of your death, then a majority of your children would decide. If you had no children, then your parents would decide. If you had no relatives at all, then any person acting on behalf of a decedent can make the arrangements.

This final category, “anyone acting on behalf the decedent,” might be the individual who served as the legal guardian for the decedent. It might be a hospital that has possession of the body of a person who died in the hospital and no one has claimed the body.

The best option is to simply name a funeral agent in your Will if you believe there is any chance that your family might not agree with your funeral wishes. Like anything, good planning can often avoid fights.

Should I Avoid Probate?

Every week a client will ask me, “How can I avoid probate?” Clients believe that probate is a very expensive process and that it involves lawyers and the court system. As I have explained to clients time-and-time again, their perception of the probate process is far worse than the reality of the probate process.

New Jersey is not known for being an inexpensive state. New Jersey has one of the highest costs of living in the nation. Our state is famous for its high taxes. We are one of two states in the nation that has two death taxes.

Ironically, though, the cost of submitting a Will to probate in our state is quite low, which is not the case in other states. Florida, for instance, which has a much lower cost of living than New Jersey and which has no state death taxes, has a far more complicated and costly probate process than New Jersey.

In order to discuss probate, though, one must understand what “probate” means. The act of probate is the act of proving the validity of a Will. In other words, it is the act of proving that the last will and testament of the decedent is the valid last will and testament of the decedent.

A Will must be signed with a certain level of formality. Most Wills signed in New Jersey are self-proving, which means that no witness to the signing of the Will must testify as to the decedent’s signing the Will.

In order to be self-proving, the Will must have been signed by the decedent in the presence of two witnesses. Both witnesses must have signed the Will in the presence of each other and the decedent’s and witness’s signatures must be notarized. Finally, the Will must contain certain language found in a New Jersey statute that says the decedent was over the age of eighteen, competent, and not being unduly influenced at the time he signed the Will.

A Will is still a formal Will if the decedent merely signed the Will in the presence of two witnesses and the witnesses sign the Will, but it would not be self-proving if their signatures weren’t notarized and the statutory language was missing. If a Will is not self-proving, then a witness to the signing must submit an affidavit validating the signing.

A Will could also be a holographic Will if the decedent wrote the Will in his own handwriting and signed the Will.

Finally, a Will that fails to meet any of the above-referenced requirements may still be a Will if it is a writing that can be proven to be a document that the decedent intended to be his last will and testament. Unsigned documents have been admitted to probate as writings that the decedent intended to be his Will.

Proving that the Will is a valid Will–meaning that the Will satisfies one of the criterion outlined above–is the act of submitting a Will to probate. Since most Wills are self-proving and were written by attorneys, the act of submitting a Will to probate is very simple and takes about thirty minutes.

You submit a Will to probate before the Surrogate of the county in which the decedent died domiciled. So, for instance, if the decedent lived in Monmouth County, then you probate his Will before the Monmouth County Surrogate.

The act of probating the average Will costs about $150. While the Surrogate technically is a judge and the Surrogate’s offices technically are a court, your experience with a surrogate will be more like visiting an office building than a court. The act of probating involves completing some very simple forms, which a probate clerk will help you complete.

In short, there is no reason to avoid probate in New Jersey. The work you would have to do to avoid probate is far more than the work involved in submitting a Will to probate.