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Who’s in Charge of Your Funeral?

Roger McClure June 10, 2009

Most people do not put someone in charge of their funeral. Most people don’t sign a document that designates the person who will make funeral arrangements.

You say: Isn’t this covered by my will? No, because it takes weeks to get an appointment to be appointed the executor of your will and no one is going to wait weeks to deal with the body. They don’t put you on ice wanting for a decision. It is not common to cover this in your will.

But, I gave a general power of attorney to my trusted daughter/spouse/son/buddy. No, because powers of attorney expire when you do.

Well, I have this lengthy living trust with all sorts of things in it. No-the living trust deals with property not your physical body.

Remember the week long trial in 2007 on CNN with the Weeping Judge in Florida as to who had the right to bury Anne Nicole Smith?

Today, families are dispersed and according to recent statistics, most Americans do not live with a legally married spouse. Widows, widowers, live ins, divorced, living in nursing homes, never married, sisters, same sex couples, and singles now out numbered the number of people living with spouses. This means most Americans today do not have the automatic comfort of a caring spouse who will make these arrangements.

Fred died and wanted the love of his life, Ellen, his live in of 20 years to execute his funeral instructions that he had told her in detail. But, his estranged son, Edward, insisted that father’s body be cremated even though his dad’s religious beliefs forbade cremation. Dad was a veteran and wanted a Marine Corps honor guard and taps at his funeral, but the son disliked the military and failed to contact the Marine Corps to make such arrangements. Ed had quickly made arrangements with the funeral home as the oldest son and Ellen had no legal power to stop Ed. Ed didn’t even invite Ellen to the funeral because Ed resented Ellen as the cause of the divorce of his Dad and mother.

This is an emotional minefield when it comes to same sex couples where the partner has no legal rights under most state laws.

Contrast this Ted who planned his church service and funeral. He had two children and had an emotional divorce and shared a house with Mary, the later love of his life, whom he never married. One daughter, Judy, was estranged and Ted and Judy had not talked for years. But, Ted scripted the music, readings and remembrances for his church service and funeral and included Judy, his son, Mary, his ex wife and his closest friends as readers and participants in the service. When Ted died, he was a healthy 60 year old ridding his bike to the store and had a sudden and unexpected stroke. At the service, everything went smoothly and the family was brought back together with a warmth that I will never forget. No one expected Ted to die so suddenly, but Ted was a detail person and made sure he covered this detail.

You don’t have to devote yourself to the details that Ted did. You can simply sign a document indicating your wishes and have your lawyer do what is necessary to make it work. In Virginia, we have a very good set of statutes which allow people to designate who will handle their funeral, burial and autopsy. You have the choice to designate a spouse, child, friend, partner or anyone you trust. This trusted person must sign a notarized statement that they accept these duties. Also, you direct your trustee or executor to pay the expenses of the funeral out of your trust or estate.

The laws of the states vary a lot on this subject. Some states have virtually no law and leave it up to the funeral homes to choose the person who will make the arrangements.

Make sure you cover this important point in your estate planning with an attorney who has experience with this. Don’t have your final memory be the debacle at your funeral.