Who Will Dispose of Your Remains?

If you leave burial instructions in a health care power of attorney, or in a signed writing as part of a living trust, you may avoid unfortunate post-death consequences that cannot be undone.

A retired bachelor made a will in which he disinherited his only child, an illegitimate adult daughter with whom he never had a relationship. Within a few days of his death the daughter came from another state and took over the funeral arrangements. The father had no relatives in the area. He was close with his several siblings but they lived hundreds of miles away. However, the daughter had him buried in the area where he died and where no family member lived. That meant that his family would find it burdensome, time-consuming, and expensive to ever visit his grave.

The father had not made his burial wishes known. Why didn’t the daughter confer with his family on the funeral and burial? She was not required to do that under the law. And she may have harbored hard feelings toward the father.

When a person does not leave written instructions as to disposition of remains, California law (Health and Safety Code. Sec. 7100) sets out the order of decision-makers.  They are:

  1. The competent spouse
  2. competent child or children
  3. competent parents
  4. competent siblings
  5. competent next of kin

You may expect your spouse to bury you and thus you put nothing in writing. What if your spouse is not competent at your death? Then it falls to the children to decide. What if they cannot agree?

You may feel that even if you left written instructions, they could be ignored. The statute makes it mandatory that the person you named must carry out your specific wishes. A court can compel it.

Unfortunately, the problem of the disinherited daughter taking over did not stop at the funeral. She later broke into and ransacked her father’s house, used drugs in the house, took property including the car, and had the mail forwarded to her out of state address. She even retained a lawyer and opened a probate in court so that she could inherit the estate (she was not aware there was a will). Luckily the probate was stopped when the will was found by family members. The daughter has left the state. Nothing has been returned.

Had the deceased father made a living trust rather than just a will, the outcome would have been different. He would have appointed a family member to handle his burial. He would have appointed a trustee to take control of his property shortly after death without a court being involved. The family was forced to petition the court and open a probate with the will. It can take several weeks if not a few months for a court to appoint an executor. Until that time no one could protect and control the house and the assets.

Don’t be without the necessary documents. We are happy to consult with you.

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