There can be times that a dispute will break out among the members of a deceased person’s family on the subject of where and how to dispose of the body. Burial or cremation? This cemetery or that cemetery? Next to the first spouse (parent of the children) or next to the most recent spouse? And so on. New Jersey has a statute that actually deals quite directly with that problem. It’s called the ___ and can be found at N.J.S.A. 45:27-22.
A person who is setting up their estate plan can put a provision into their Last Will and Testament which designates the person who is to be in charge of the arrangements. This doesn’t have to be the Executor. The agent’s authority under a Power of Attorney, of course, expires at death of the principal person, so s/he doesn’t automatically have priority for this role. The old concept of “getting your affairs in order” might include designating the person who will have control over these arrangements.
Although a Will isn’t probated until ten days after a death, a provision concerning the funeral will be given effect before that. If no person has been appointed by the testator to control the funeral arrangements, the statute sets forth a hierarchy of individuals. First is the spouse (with some exceptions); then the majority of the adult children; then the surviving parent(s); then a majority of the surviving brothers & sisters; then other next of kin; then any other person.
When seniors are planning for their care and their estates, they do sometimes write “funeral instructions” as a separate document which is kept with the estate planning documents and Will. That document might name the person to be in control of the process. Since the statute only deals with provisions within a Last Will and Testament, if there is a dispute, a case would likely have to be filed with the probate judge, who would need to rule on whether the document controlled or the statutory hierarchy was applicable.
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