Naming a funeral representative (and why you might need one)

One of the best hitters of all time was Ted Williams. When he passed away in July, 2002, his children fought over the disposition of his remains. (He wound up beheaded and his head was cryogenically frozen in the hope that sometime in the future a cure will be found for the disease that led to his death and at that time he would then be “brought back” , treated, and would regenerate a body). Similar things have happened with other sports stars, such as Ernie Banks, where the estranged wife, 2 sons and a caregiver fought over whether he wanted his body cremated. Unless you are Shirley McLain, who apparently believes in reincarnation and that she will come back to this earth in some other life form, you may want to think about what is to be done with your bodily remains, once you are gone, so that your wishes are followed, and you (hopefully) avoid family members fighting over the disposition of your body.

Many people are opposed to cremation (for religious, moral, ethical or other reasons) yet it is becoming more and more popular and is generally a much cheaper alternative to the typical casket, purchase of a plot in a cemetery, burial in a vault, etc. The state of Michigan, in recognizing the fights that have occurred over the years in regard to disposition of a deceased body, has recently enacted a Funeral Representative statute (effective June 27, 2016) that gives one the power to name a Funeral Representative who will have authority to make decisions as to what is to be done with the remains in the event of death, including making funeral and burial arrangements.

You can name a Funeral Representative in a Will, Patient Advocate Designation, Durable Power of Attorney (DPOA), or other document. However, we typically do not recommend this be done, as the Will is usually not “read” until the deceased has been laid to rest and the powers under a Patient Advocate Designation and DPOA end at the time of death (unless earlier revoked). Thus, if this is something of interest, we recommend that it be a separate document that is properly executed and is kept along with your other estate planning documents (Will, Trust Agreement, DPOA and Patient Advocate Designation).

So, who should you name as a Funeral Representative, what are the priorities, and what are their powers? Typically, one would name their spouse and then a trusted child who you believe will follow your wishes, as set forth in such document. If you do not name anyone then the priorities are the same as in intestate succession, where someone dies without having made out a Will (this may vary from state to state). A Funeral Representative must be at least 18 years of age and of sound mind. A Funeral Representative is presumed to have the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body, including but not limited to decisions about cremation and the right to retrieve from the funeral establishment and possess cremated remains of the decedent immediately after cremation.

If two or more persons are named as a Funeral Representative and they cannot agree, then the majority vote rules. If the majority is not established or they cannot agree then any of the named individuals may file a petition with the Probate Court where the decedent was domiciled and that Court will then decide what is to be done with the remains.

Having named a Funeral Representative could have helped avoid all of the infighting and bad blood that came out of the Ted Williams situation. Shouldn’t you consider this as well should you believe there will be some disputes when you are gone as to what is to be done with your body?