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.