Making a Will? Don’t Forget About Funeral Arrangements

Let’s face it, forcing yourself to contemplate your own demise and make a Will is, to most of us, unsettling at best.  Add to that the need to plan your own funeral and it’s enough for many people to avoid all of it entirely.  But a recent case, In the Matter of The Estate of John E. Travers, Jr., serves as a stark reminder of why all of us must address these issues, however unpleasant it may be.

In the Travers case, the decedent died without a Will, was not married, and had no children.  He was survived by his parents, who were divorced.  The decedent’s father wanted his son’s remains buried, while his mother felt that he should be cremated.  The court was thus forced to resolve the dispute.

We addressed the right to control funeral arrangements and disposition of remains in a prior blog post.  As detailed there, New Jersey law provides that a person may, in a Will, appoint someone to control their funeral and the disposition of their remains.  That person can be someone other than the Executor.

If no one has been appointed in the Will to control funeral arrangements (or if there is no Will), 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 decedent’s surviving adult children;
3. Third, to the surviving parent or parents of the decedent;
4. Fourth, to a majority of 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.

The court in Travers noted that there was no prior guidance on how to resolve disputes between even numbers of next-of-kin of equal statutory standing (in this case, the decedent’s parents).  Noting that the intent of the applicable statute is to adhere to the wishes and desires of the decedent, the court established the following factors to be considered when determining which family member should have the right to control:

1. Who is more likely to abide by the wishes of decedent as expressed through communications with another;
2. Who established a closer relationship to the decedent and is thereby in a better position to surmise the decedent’s desires and expectations upon death;
3. Who is more likely to adhere to the religious beliefs and/or cultural practices of the decedent;
4. Who will ultimately be designated as the administrator of the estate.

The court ultimately determined that the decedent’s father, with whom he had a closer relationship and had lived with for several years prior to his death, was the appropriate person to control the funeral and disposition of remains.

The real message of the case, aside from the result and legal analysis, is that procrastination in this area can have real-life consequences to your loved ones.  In this case, those consequences were lost time, expense and most importantly, emotional distress.  For those who continue to avoid making a Will and addressing funeral arrangements and disposition of remains, this case can hopefully serve as a catalyst to move beyond those fears and finally get it done.