How To Resolve Estate Planning Disputes: The Funeral & Burial

The post-mortem activities involving baseball great Ted Williams spotlight an Estate Planning issue that rarely is discussed: Who has the final say on the funeral and burial arrangements?

Most of you will recall that after Ted Williams passed away, his son apparently had the body flown to a firm in Arizona, where the body was frozen in cryonic suspension.

Williams’ other children say that he always wanted his body to be cremated.

The son produced a note signed by Williams stating that he wanted the cryonic treatment.

After discussions between the two groups of offspring failed to resolve matters, the dispute moved to the courts.

This series of events, while sometimes amusing tabloid fodder, also raises serious questions about estate planning.

Not everything is controlled by your will.

The fate of IRAs and retirement accounts, for example, is controlled by the beneficiary designation form filed with the plan sponsor.

Section 529 college savings plans might or might not be controlled by your will, depending on the state plan.

What about your funeral, memorial service, and the disposition of your body?

Control over the remains depends on state law, and the rules vary widely around the country.

This is an area in which you might have to do some extra work to see that your final wishes are fulfilled.

Only about half the states have a rule specifically requiring that the deceased’s wishes regarding the body be followed.

Among those states with specific laws, the rules vary considerably.

My state of Virginia says that the written requests of the deceased must be followed.

West Virginia says the deceased’s wishes will prevail only when there is a prepaid funeral.

Arkansas allows the next of kin to overrule only a request for cremation.

Many states have no law covering the issue at all. Even in the states that do have such a rule, enforcement is a question mark.

If the deceased wanted one thing, and all the children want something else, there’s not much to keep the children from going through with the arrangements they prefer.

If all the children agree, who is going to complain?

The funeral home, for example, might refuse to comply with the children’s wishes, but the estate executor could move the body to another funeral home.

The issue generally arises only when the next of kin disagree with each other.

When that happens, things can get messy.

If the kin go to court, a resolution could take some time.

There are a few cases in which bodies were put on ice for years until courts resolved the final disposition of the bodies.

One classic case took four years to resolve.

While rare so far, such disputes are likely to be more commonplace in the future because of today’s many patchwork and dysfunctional families.

Multiple spouses and children from different marriages make disagreements more likely.

These families have far more than the usual sibling rivalries to send emotions surging.

Ted Williams, for example, was married four times.

Another factor likely to increase such disputes is that the choices for disposing of (or preserving) remains are increasing.

Now, one’s remains even can be made part of a coral reef.

Whatever your state law, you can reduce the likelihood of a dispute and increase the odds that your wishes will be followed.

Take these steps:

• Understand your state’s law. You can find a summary of each state’s law at the web site www.funerals.org, along with other information on this topic. If you spend time in more than one state, learn which state’s law will prevail.

• Put your wishes in writing. The more detailed your writing, the better. It always has been a good idea to write down any preferences you have about the final arrangements. You probably want this document to be separate from the will or want to express your wishes in both the will and another document. That’s because the will often isn’t even opened until after the funeral. A disadvantage of a writing outside the will is that in some states only the will is legally binding. That’s why in those states you should consider putting the request in both your will and a separate writing. Distribute the separate writing to the appropriate people. Be sure the writing is notarized. That reduces arguments that the writing was just a draft or not your real intentions, which became an issue in the Williams case.

• Let other people know your wishes. The more people who know your wishes and that you expressed them in writing, the more likely it is that your wishes will be fulfilled.

• The more of the final planning that you do, the more likely you are to have your final requests followed. It is possible to go as far as prepaying for the funeral, though I don’t recommend prepaying, because it usually isn’t a good financial deal.

One way to make things easier on your next of kin and get your final wishes granted is to use my workbook, For My Heirs.

This is a compilation of worksheets, forms and documents that lay out your affairs and give instructions to your kin.

It is available for purchase right here.

P.S. My colleague, Jim Woods, is inviting Retirement Watch readers to view his online “$10k to $100k” presentation from the Las Vegas MoneyShow. Click here to watch from the comfort of your own home.