Don't Be Anna - Make Burial Instructions

Category: Probate and Estate Administration

In the wake of the travesty that is the Anna Nicole Smith saga, I am beginning a series of posts on what you can do to avoid some of the problems her lack of planning have caused. Now, most people's death would never come close to being the global circus of Anna Nicole's, but within your own family circle, a failure to plan can have potentially devastating consequences. So - Don't be Anna.

A basic tenent of estate planning is that it has to be clear, because, by definition, you won't be here to describe your intent.

One area that you have the right to direct are your burial wishes. In New Jersey, NJSA 45:27-22 grants you the right to control your funeral wishes by a written statement in your will. If you have no statement, various people, in descending order, have the right to make the decision for you. But give your family members a gift - tell them what you want in your Will, instead of leaving them to make guesses, or worse, disagree.

22. a. If a decedent, in a will as defined in N.J.S.3B:1-2, appoints a person to control the funeral and disposition of the human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed. A person so appointed shall not have to be executor of the will. The funeral and disposition may occur prior to probate of the will, in accordance with section 40 of P.L.2003, c.261 (C.3B:10-21.1). If the decedent has not left a will appointing a person to control the funeral and disposition of the remains, the right to control the funeral and disposition of the human remains shall be in the following order, unless other directions have been given by a court of competent jurisdiction:
(1) The surviving spouse of the decedent.
(2) A majority of the surviving adult children of the decedent.
(3) The surviving parent or parents of the decedent.
(4) A majority of the brothers and sisters of the decedent.
(5) Other next of kin of the decedent according to the degree of consanguinity.
(6) 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.

For some more in depth thoughts on this problem, look at Will Your Family Honor Your Funeral Instructions?