Does The Executor Of A Will Have The Right To Make Funeral Arrangements For The Decedent?

Although the intuitive response to that question would likely be “yes,” that would be incorrect in many circumstances.  New Jersey Law provides that a person may, in a Will, appoint someone to control their funeral and disposition of their remains.  The person appointed can be someone other than the Executor.

While Wills in New Jersey cannot be probated for 10 days after death, the law provides that the funeral and disposition can occur prior to the probate of the Will.  However, many Wills do not expressly appoint someone, whether it be the Executor or otherwise, to make funeral arrangements.  So then what?

If no one has been appointed in the Will to control funeral arrangements, New Jersey law provides the following hierarchy of individuals to whom the power is granted:

1. First, to the surviving spouse;
2. Second, to a majority of the decedent’s surviving adult children;
3. Third, to the surviving parent or parents of the decedent.
4. Fourth, to a majority of the brothers and sisters of the decedent;
5. Fifth, to other next of kin of the decedent (i.e., nieces, nephews, cousins, etc.); or
6. Finally, if there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

This is important information for people drafting their Wills and for surviving family members.  If you want to designate someone to control your funeral arrangements, whether it is the Executor or someone else, you must expressly say so in your Will. Likewise, family members must understand their rights, in that the mere designation of an Executor, without an express authorization to the Executor or someone else to control funeral arrangements, does not override family members’ statutory rights to participate in that process.

If you have any questions about this post or any other matters, please contact me at jjcostellojr@nmmlaw.com.