The Right to Control Funeral and Burial Arrangements (Part 1)

       Recently my client, Joe asked me how he could be sure his wishes with respect to his funeral arrangements would be honored.  Joe is not married. He has children but is not close with them.  He has no siblings.  I suggested to him that he could set aside money in a prepaid burial.  This is something that is often done as part of a Medicaid spend down but can also be utilized where Medicaid is not needed.

       Joe must go to the funeral home and make the choice of services he wishes.  Instead of paying the funeral home, however, money is set aside in a trust account.  The funds are paid from that trust account to the funeral home after Joe’s death when the funeral services are provided.  Joe wasn’t thrilled with the idea of going to the funeral home.  Instead, he said he explained to his companion of many years, Betty what he wants for a burial.  “How can I make sure that Betty will be able to carry out my wishes?”, he asked.  “I don’t want my kids meddling in my affairs.”

       New Jersey law provides that a person can be designated to control the funeral and disposition of human remains.  This “funeral agent” can be named in the will and does not need to be (although it can be) the executor of the will.  In Joe’s case he can designate Betty as his funeral agent and she will be able to make all decisions regarding his funeral and burial, even if they occur before the probate of the will.  This will prevent his children from taking over after he dies.

       And what happens if there is no funeral agent?  Next week I’ll cover that scenario.