"I....Ain't Got No Body...."

At the Jacobson Law Firm we do a lot of estate planning and probate a lot of wills.  Ideally, the transition between making a will and settling an estate is seamless, with everything set out ahead of time and all parties in agreement, or at least acknowledging and following the stated desires of the person who made the will and then passed away.  Ideally...

But what about the immediate aftermath of a person's passing?  The will hasn't been probated, the house may be a mess, family may be unavailable (either geographically or emotionally), and an important decision needs to be made and, frankly, can't wait for people to show up: what to do with the earthly remains of the dearly departed.  I'm in that stage of life where the people around me (including myself and my wife) are losing parents, and though it's usually not an issue, occasionally there will be power struggles between the kids as to Mom or Dad's wishes regarding interment, inurnment (a new term to me, learned because I'm presently involved in my church's construction of a columbarium, which is where an urn with cremated remains is kept), donation to science, etc.  Whether it's a sincere desire to honor Mom's wishes or just control issues, there can be extremely sharp disagreements about how to dispose of the body.  Wait, that sounds like we're trying to cover up a murder...

Fortunately, a Texas statute, Health & Safety Code Section 711.002, clearly spells out whose right and responsibility it is to decide on disposition of remains, and in what order.  Generally, it's:

1. The person appointed by the decedent in an "Appointment for Disposition of Remains" (more on this below); then
2. The decedent's surviving spouse; then
3. Any one of the decedent's surviving adult children (no requirement for a majority); then
4. either one of the decedent's surviving parents; then
5. any one of the decedent's surviving adult siblings; then
6. any one or more of the duly qualified executors or administrators of the decedent's estate; then
7. heirs at law

There are some other provisions as well, like the fact that whoever makes the decision is responsible for the costs of disposition and can claim reimbursement from the estate.

To avoid any misunderstanding, especially if you know there are those in the family who will make a big deal out of disposition of remains, it's a good idea to sign an Appointment for Disposition of Remains. 

As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer.  If you have questions, consult an experience estate planning attorney to discuss your options.

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