Amazingly, the wishes and intentions of the decedent are not among the factors which the court  is directed to consider as relevant factors in making any decision about arrangements for funeral, burial or cremation.   The closeness of the relationship between the moving party and decedent and whether that person is willing to pay the funeral costs, are factors which the court is directed to consider.  In sum, the priority of the new law seems to be rapid decision making, clarity for  funeral directors and exculpation for funeral directors who follow the new procedures.  

Do We Change Wills?  Normally, estate planning attorneys ask clients if they have any specific wishes or directions concerning final arrangements, burial, cremation, etc.  Typically, these are incorporated into a person's Will.  The new law throws these directions and evidence of intentions into question.  We will recommend that individuals continue the practice of expressing their wishes, but advisors should counsel them that these directions are not binding.  Hopefully, family members would be made aware of the decedent=s wishes and follow  them.  However, individuals will need to understand that specific wishes of a surviving spouse, or specific religious convictions, may override a client=s own wishes concerning these matters.  My difficult experiences have generally involved a second marriage and a dispute between a surviving spouse and the decedent=s own children.  This situation can be aggravated when the children do not agree.

The new law, however, removes much of the confusion from the old law and provides specifically that the surviving spouse can give funeral directions.  These situations can get awkward.  I would personally not agree with the legislature=s conclusion to override a decedent=s written instructions by family decisions.  But at least we have more clarity in the law and specific provisions for making these important decisions in an expeditious manner. 

While I cannot comment specifically, it is my impression that the new statutes were motivated by pressure from the funeral industry with relatively little input from the probate bar.  However, be that as it may, at least the conflict in the statutes has been resolved and we now have a definitive procedure for dealing with these matters. 

Conclusion.  While the matter of final arrangements is not one which arises to the level of critical importance for many people, and particularly for financial advisors, family conflicts can be avoided by good communication, by expressions of the decedent=s intent in a Will, and on a practical level by prepaid funeral arrangements.  Should these questions or any other probate or trust matters confront you personally or through one of your clients, please contact  Jim Modrall at (231) 941-9660 or any of the other attorneys listed below.

 Donald A. Brandt, Joseph C. Fisher, Thomas R. Alward, Edgar Roy, III, Matthew D. Vermetten, Thomas A. Pezzetti, Jr., John M. Grogan, Vicki P. Kundinger,  Susan Jill Rice,  Gary D. Popovits,  Lawrence K. Kustra, H. Douglas Shepherd, Jonathan J. Siebers and Karin Church at (231) 941-9660

  ©BRANDT, FISHER, ALWARD & ROY, P.C.

This newsletter is provided for informational purposes and should not be acted upon without professional
advice.