Estate Planning For Funeral & Burial or Cremation
- Importance of a Funeral
- Arranging for a Funeral & Burial After Death
- Planning in Advance for Funeral & Burial
- Estate Planning for Funeral & Burial Arrangements
- Prior Common Law & Ohio Law
- Ohio's Right of Disposition Statute
- Estate Planning under Ohio's Statute
- Funeral Goods & Services
- Consumer Rights
- Pre-Need Funeral Contracts
- Veteran's Burial
- Traditional Methods of Disposition
- Unusual & New Methods of Disposition
- Other Laws Relating to Disposition of Dead Bodies
Importance of a Funeral:
Every person deserves some sort of funeral service no matter how brief or inexpensive. A person has lived a life with some friends and family and their life should be acknowledged in some manner. It is certainly difficult to organize and participate in a funeral after the death of a loved one. Talking with many friends and relatives can be exhausting and emotionally difficult. However, it is an important part of the grieving process. It allows everyone to express their feelings and provide emotional support to each other. It is also important simply to say goodbye to your loved one. If you avoid having a funeral or memorial service, you will just prolong the grieving process. If your concern is about the expense of a funeral, there are ways to have an inexpensive service as described herein. Remember that the funeral is for the benefit of the family and friends not for the deceased. Even if the deceased had stated they did not want you to have a funeral, you should still have one for the reasons stated here. Please also realize that the deceased had other family and friends that are also grieving. You should reconsider your decision to not have a funeral in consideration of the feelings and needs of others. If you have some reasons for not having a funeral, I strongly advise you to overcome all your objections and issues and plan a short, simple and inexpensive memorial service.
- What are the desires, customs and religious practices of the deceased and the closest next of kin with respect to funeral services and disposition of the body?
- How much money is available for the funeral & burial? You should decide on a budget.
- Call, go online or visit funeral homes, cemeteries and other providers to get information on prices and services. Request a price list be sent to you via email or other quick method. Take a friend with you who is not as emotionally involved in the situation and who can be objective in helping you make decisions on the arrangements. Do not agree on arrangements at your first meeting with a funeral director. Go home and think about your options before deciding. You should also consider the feelings and wishes of other family and friends close to the deceased.
- If you are signing a contract for funeral goods and services, you will be personally responsible for payment. It is possible that you could get reimbursed later from funds in the probate estate. However, you will not get reimbursed if the deceased does not have any estate requiring probate or if there are insufficient funds in the estate. The estate passing outside of probate (e.g. trust, joint accounts, life insurance, IRA) is not obligated to pay or reimburse the funeral bill.
- If you want to save money, consider the following options:
- Donate the body to a medical school or other organization that accepts body donations. They will usually pick up the body at no cost to you.
- Do not have a full funeral service but choose a direct burial or direct cremation by the funeral home. You can then arrange for a memorial service at a later date to be held at someone's home or a community facility. Check with your church to see if they will allow a funeral or memorial service at the church.
- Some cemeteries have a place where you can have the funeral service including viewing of the body instead of doing this at a funeral home. There may be no charge or a small charge if you are having the burial at the cemetery.
- Buy the cheapest casket available. Consider buying one directly from a supplier out of town instead of from the funeral home. Do not be misled by representations that a particular casket will “preserve the body.” No casket will preserve the body or prevent the eventual decomposition.
- Buy the cheapest burial vault available. This is a container in addition to the casket that is required by almost all cemeteries. You can probably get a better price buying this from the cemetery.
- A cremation without a funeral service or burial at a cemetery lot or mausoleum/columbarium niche will avoid some expense. You will then need to decide what to do with the cremains.
- The general advice above applies to planning in advance.
- You will have more time to shop around if you are planning in advance of the actual funeral so take advantage of this time. Visit a few funeral homes, ask questions and make sure you understand all the itemized charges and your options.
- You should consider paying in advance with a Pre-need Funeral Plan. The advantage is that you have decided on all the funeral details and made things easier for your family after you have passed away. The obvious disadvantage is that you have to pay now rather than later. You can also assign an insurance policy to the funeral home. This means that when you pass away, the insurance policy proceeds will be paid directly to the funeral home. If the policy is more than the funeral cost, then your estate will be waiting for them to send a refund of the balance. You can accomplish the same result by having the insurance payable to your estate or other person who can then use it to pay for the funeral.
- Pre-need funeral contracts are regulated by Ohio law. The purchase of the pre-need funeral contract may be made by use of an insurance policy or with cash. If the purchase is made by a payment of cash, all of the funds must be held in trust by a licensed trust company or national bank. The consumer has a right to cancel the contract within seven days. The contract is required to have a notice stating that the person holding the right of disposition under Ohio law has the right to make funeral arrangements inconsistent with the arrangements set forth in the prepaid funeral contract. Thus, the person with the legal right to make funeral arrangements can decide on something contrary to the provisions of the pre-need contract. If the contract is revoked and if it does not stipulate a guaranteed price, then the purchaser is entitled to a 100% refund less any fees and expenses. However, if the contract does stipulate a guaranteed price, then there may be a cancellation fee of up to 10%. The contract must also be transferable to another funeral home. However, the original seller may charge a transfer fee up to 10%.
- There have been many stories of funeral homes and cemeteries that have gone out of business taking with them prepaid funeral plan money. Theoretically, this should not happen under the provisions of the current Ohio statute. However there are certainly no guarantees that the funeral home will comply with the statute. It is advisable to pre-plan but not necessarily to prepay.
- If you decide not to purchase a prepaid funeral plan, all the details of the funeral and burial/cremation can be specified in a legal document called the “Appointment of Representative For Funeral and Burial Arrangements.” This document should be part of your estate planning even if you have a Preened Funeral Contract.
- If you are spending down and expect to apply for Medicaid for nursing home costs, then the pre-need funeral contract must be irrevocable. You can also purchase a burial space for the applicant, spouse, and members of the applicant’s immediate family. Both of these are non-countable resources under Ohio Medicaid rules.
Estate Planning & Funeral & Burial Arrangements
Planning for your funeral and burial is part of estate planning. This is recommended by almost every book on estate planning. Lawyers traditionally have not been involved in this aspect of estate planning due to the state of the law as discussed below. This has changed in Ohio.
A. Common Law
At common law, the decedent's body is not considered to be part of the decedent's estate. The States have differed as to whether a provision in a Will expressing a direction concerning the disposition of the decedent's body should be treated as binding on the Court or Executor. The law in most States is that such provisions are not binding and that the next of kin have a superior right to determine the place and method of burial. However, more than half of the States now have a statutory obligation for survivors to honor the written wishes of the decedent concerning disposition of the remains.
B. Ohio Law
In the past, most attorneys did not discuss the issue of planning for the funeral and burial. Some attorneys would suggest to clients that they write out and communicate instructions to their family and/or purchase a pre-paid funeral plan. Some attorneys included an instruction in the Will. None of these options are good estate planning options as will be discussed below.
Ohio's Right of Disposition Statute
Amended Substitute H.B. 426 was enacted in Ohio, effective 10/12/06, providing for an enforceable legal document appointing a representative with authority to exercise the rights of disposition and related provisions to clarify the law in this unsettled area. The more general term “disposition” is used to encompass a burial, cremation or other method of disposition of the body. The legal document is more like a Health Care Power of Attorney than a Living Will. It assigns the right of disposition rather than setting forth the declarant's wishes as the controlling part of the document. This approach might seem objectionable to those with firm beliefs and intentions concerning their disposition. However, relying on an appointed person is probably best given that circumstances may change rendering the person's wishes impractical or for many other reasons not wise to carry out. It also avoids putting a funeral home in the middle of a disagreement on how to interpret or carry out the expressed wishes in the document.
The legal document set forth in the law is called an “Appointment of Representative For Funeral and Burial Arrangements.” This document (referred to as “Appointment document”) includes a statement of your preferences concerning your burial or cremation and appoints a representative to exercise the right of disposition for your body upon your death. This includes the right to direct the disposition of your body, to make funeral arrangements and arrangements for burial, cremation or other manner of final disposition of your body. This representative has the legal responsibility and right to make all final decisions on such matters. If you have a document or driver's license provision for an anatomical gift (i.e., organ donation), the representative must comply with such instructions prior to any burial arrangements.
If there is no Appointment document, then Ohio law sets forth the persons who are vested with the right of disposition. The order of priority is as follows:
- surviving spouse
- the sole surviving child of the deceased or, if more than one, all of the children collectively
- the surviving parent or parent
- the surviving sibling, whether of the whole or half blood, or if more than one, then all of such sibling's collectively
- the surviving grandparent or grandparents
- the lineal descendants of the grandparents
- the guardian of the deceased if such a guardian had been appointed at the time of death
- any other person willing to assume the right of disposition including the personal representative of the estate or the funeral director with custody of the body after attesting in writing that a good faith effort has been made to locate all of the above persons.
A. Reasons You Should Have the Assignment Document & Common Objections
Objection: “I will just tell my family what I want.”Would you just tell your family your wishes concerning artificial life support and not sign a Living Will? You should sign the Assignment document for the same reason you sign a Living Will. The advice to just tell your family your wishes also ignores the other important aspect of the Assignment that appoints a representative who has authority under the statute to make all funeral and burial arrangements.
Objection: “I have never had any problems with other family funerals.”
Estate planning is not based on a prediction of the likelihood that there will be any problem. If there is any possible foreseeable problem, it is something that should be planned for in the estate planning documents. This is the whole purpose of planning - to set forth your wishes so there is no ambiguity or dispute.
Funeral homes very often experience problems with family during the funeral service. It was the funeral home industry that sponsored the bill enacting O.R.C. §2108.70 et. seq. It is not just a matter of avoiding full-fledged litigation concerning funerals or burial. There can be many things that happen in the funeral process or burial that result in hurt feelings or other minor problems within the family. These problems can last a lifetime and destroy family relationships.
The goal of estate planning should be to plan as much as possible with the ultimate result of a smooth and efficient administration of the estate.
Objection: “I already have a prepaid funeral plan.”A prepaid funeral plan is not legally enforceable. The law actually requires a notice to this effect as part of every prepaid funeral plan. The most obvious disadvantage of the prepaid plan is of course that you must pay ahead of time. There have been many stories of funeral homes and cemeteries that have gone out of business taking with them prepaid funeral plan money. Theoretically, this should not happen under the provisions of the current Ohio statute. However, there are certainly no guarantees that the funeral home will comply with the statute. It is advisable to pre-plan but not necessarily to prepay.
B. Why You Should Have an Assignment Document
- The Assignment is a statutory document that is part of Ohio law. It is intended by the Ohio legislature to be part of all the other estate planning documents under Ohio law.
- Nothing could be more basic or personal than stating your intentions concerning the disposition of your body.
- Most books on estate planning will always include planning for your funeral and burial as part of the text.
- For the same reasons that you have a Living Will, Health Care Power of Attorney, Will and General Power of Attorney, you should also have an Assignment document. There is no reasonable basis for making a distinction between these documents.
- Even if you do not have any special wishes for the disposition of your body, the Assignment is very important for the appointment of the representative who will have legal authority to make all funeral arrangements.
- The funeral homes prefer and may in fact require this document in order to have assurance that they are dealing with the right person.
A. Funeral Goods & Services
The funeral service can vary greatly depending upon cultural customs, religious customs and personal preferences. These preferences should be expressed by you and incorporated into the Assignment. Although the wishes of the deceased are certainly important and should be respected, one should also keep in mind that the funeral is an important part of the grieving process for the family and loved ones. The deceased may have stated that they do not want a funeral or may have stated some impractical or unusual intention. However, it is sometimes best to not follow this expression by the deceased and do what is best for the family.
The funeral service involves not only the disposition of the body but the commemoration of a life lived. The funeral home can be a great source of assistance in preparing photos and other items to commemorate the person's life. A memorial service can also be held separate and apart from a viewing and burial of the body. This is often done weeks after the disposition of the body.
The FTC has promulgated a rule setting forth consumer rights when purchasing funeral goods and services. Some of these rights in the FTC rule are as follows:
- A right to receive price information over the telephone.
- The funeral home must give the consumer a general price list.
- The consumer has a right to use an alternative container instead of a casket for cremation. For example, the body could be placed in an unfinished wood, pressed wood, fiberboard or cardboard box.
- The consumer may purchase a casket elsewhere and the funeral home must accept this casket.
- Funeral arrangements can be made without embalming of the body. No State law requires embalming for every death. Refrigeration of the body is an acceptable alternative. However many funeral homes have a policy of requiring embalming if the body will be publicly viewed.
A prepaid funeral plan is referred to under Ohio law as a pre-need funeral plan. Pre-need funeral contracts are regulated by Ohio law. The purchase of the pre-need funeral contract may be made by use of an insurance policy or with cash. If the purchase is made by a payment of cash, all of the funds must be held in trust by a licensed trust company or national bank. The consumer has a right to cancel the contract within seven days. The contract is required to have a notice stating that the person holding the right of disposition under Ohio law has the right to make funeral arrangements inconsistent with the arrangements set forth in the prepaid funeral contract. The trustee of the funds is required to give a notice to the purchaser upon their receipt. Similarly an insurance company is required to give a notice that the insurance policy has been issued. The law also requires that the funeral home deliver the money to the trustee within 30 days. The trustee of these funds must be a trust company licensed under the Ohio Revised Code, a National Bank, or Credit Union. If the contract is revoked and if it does not stipulate a guaranteed price, then the purchaser is entitled to a 100% refund less any fees and expenses. However, if the contract does stipulate a guaranteed price, then there may be a cancellation fee of up to 10%. The contract must also be transferable to another funeral home. However the original seller may charge a transfer fee up to 10%.
In the context of a person spending down towards Medicaid eligibility, the purchase of a pre-need funeral contract should be in an irrevocable pre-need funeral contract. If it is not irrevocable in accordance with the rule, the funds on deposit could be considered a countable resource. The Medicaid rules also provide that a burial plot for the applicant's family (spouse, children, brothers and sisters and spouses of the same) is a non-countable resource.
Cemeteries are required to register with the Ohio Department of Commerce, Division of Real Estate. This does not apply to a family cemetery or a cemetery in which there have been no interments in the last twenty five years. There is a process for filing complaints with the department. Other than this registration, there is little regulation of cemeteries under the FTC Funeral Rule or State law. The rules of each cemetery govern the burial and maintaining of the grave site.
There is a separate statute concerning pre-need cemetery merchandise and services contracts. This applies to an outer burial container, monument, marker, urn or other merchandise but does not include the purchase of the grave site. There are provisions and protections similar to the prepaid funeral contract statute.
A veteran of the armed forces is entitled to a grave site in any of the 125 national cemeteries, opening and closing of the grave, perpetual care, a government headstone or marker, a burial flag, and a Presidential Memorial certificate. Spouses and dependents of veterans are also entitled to burial in a national cemetery including a burial with the veteran, perpetual care, and an inscription on the veteran's headstone. A veteran buried in a private cemetery is entitled to a government headstone or marker, a burial Flag, and a Presidential Memorial Certificate. The spouse and dependents of a veteran are not entitled to any benefits in a private cemetery.
Common Burial Practice: A typical burial in the United States involves the preparation and embalming of the body by a funeral home. The body is placed in a casket, open or closed, for a funeral service. The casket is then transported to a cemetery for burial with a headstone or other grave markers.
Anatomical Gift: The body may be disposed of by donation for medical research or other purposes. After use of the body for such purposes, it is usually cremated and the cremains returned to the family or otherwise disposed of.
Cremation: Cremation is the process of burning the body at high temperatures in a crematorium furnace. The remains of the body are called ashes or cremains. They are actually just the remainder of the bone fragments which are pulverized after the cremation.
Burial at Sea: The body may be taken out to sea and deposited in the ocean. Several private companies provide this service and the U.S. Navy will provide this service to a qualified service member.
Funeral Pyre: A funeral pyre is one of the oldest cremation traditions in the world. A body is placed on a structure packed with flammable materials and then ignited. This can be done in the United States only in Crestone, Colorado.
Mummification: The old ancient Egyptian method is apparently still in practice today. A religious organization called Summum offers mummification services.
Natural or Green Burial
A natural or green burial is simply what used to be called a burial hundreds of years ago and throughout most of human history. A natural burial is the interment of a body directly into the earth so that its decomposition in the soil can occur naturally. The body would not be prepared with embalming fluid or other chemicals. It would be buried without any container or in a shroud or biodegradable container. Generally, State laws do not require embalming or the use of a coffin or vault. Of course, most cemeteries do require a coffin and vault. These natural burials are more common in the United Kingdom which has more than 200 “Woodland” burial grounds. There is a nature preserve cemetery (Foxfield Preserve) following the principles of a natural burial located in Wilmot, Ohio. Other larger cemeteries in Montgomery Co., Ohio (Calvary & Preble Memory Gardens) are starting to set aside a natural/green burial section in their existing land.
Alkaline Hydrolysis (aka resomation)
In this process the body is placed in a mixture of water and lye and heated to a high temperature under high pressure. The body is dissolved with the end result of a green brown tinted liquid. The liquid is then disposed of either through the sanitary sewer system or by use as a fertilizer in a garden or green space. Edwards Funeral Home in Columbus, OH tried to use this process but ran into problems when the Ohio Department of Health refused to issue a burial permit for persons utilizing this process. A civil action was filed and the Franklin Co. Common Pleas Court ruled in favor of the position of the State.
Cryonics is the low temperature preservation of a person's body that can no longer be sustained by contemporary medicine with the hope that healing and resuscitation may be possible in the future.
Promession is a freeze-drying type of process involving immersing the corpse in liquid nitrogen. The end result is a powdered remains. This is not being done anywhere in the United States as of the date of this writing.
A Georgia-based company, Eternal Reefs, creates an artificial reef material out of a mixture of concrete and human remains. It is placed in the ocean where fish and other organisms can turn the remains into an undersea habitat.
LifeGem creates a diamond in a process that uses the cremains of the deceased.
Part of your cremated remains are loaded into a sealed capsule which is integrated into a Celestis spacecraft. It is then attached to a rocket and launched into space. The spacecraft continues in orbit around the Earth until the orbit decays and it is burned up in the atmosphere.
A. Ohio Law
The following procedure applies to all deaths:
- The person is pronounced dead by the attending physician or county coroner.
- A death certificate is completed by the attending physician or county coroner. The death certificate must be completed within 48 hours of death. If the cause of death has not yet been determined, the death certificate can be done with “pending” shown as the cause and then later corrected.
- The manner of disposition of a body or cremated remains are usually handled by a funeral home and cemetery. A burial permit is required prior to any burial, cremation or other disposition.
The County coroner must be immediately notified if a person dies as a result of criminal or other violent means, by casualty, by suicide, or in any suspicious or unusual manner, when any person, including a child under two years of age, dies suddenly when in apparent good health, or when any mentally retarded or developmentally disabled person dies regardless of the circumstances.
Ohio requires that the body of a person who has died of a communicable disease must be buried or cremated within 24 hours after death. A public funeral may not be held and the body may not be taken to any church or other public place.
Disinterment of a body is permitted by statute either by application of the surviving spouse with the cemetery or by an order of probate court. A separate statute also provides that the prosecuting attorney or coroner may order the disinterment of any dead body.
A cremation authorization form must be signed and delivered to the crematory facility. The statute specifies various procedures and prohibitions for the cremation process.
After cremation and return of the cremains, the disposition must be done in a manner that is not a violation of law. There are no specific laws or regulations in Ohio regulating the disposition of dead bodies or remains. However, there are many other more specific laws relating to disposal of substances on various lands, bodies of water, in the air etc... that may govern the disposition of bodily remains. The applicable law will depend on the place and manner of disposal.
In general, there is no prohibition in Ohio against scattering cremated remains on private property with the permission of the property owner. If done without permission, this could be considered a criminal and civil trespass. Publicly owned lands are governed by related statutes and regulations.
The disposal of a dead body on land other than a dedicated cemetery may violate local zoning ordinances or, depending on the manner of disposal, could violate state health regulations. At common law, a land owner may use his/her property for burial. The owner should consider how this might affect the future market value of the house.
The manner of disposal of a dead body should also be done in such a manner as not to offend the public sense of decency or morals. A criminal violation is a possibility depending on the manner of disposition.
Ohio law authorizes a scattering ground for the spreading of cremated remains as part of a cemetery.
It is illegal to picket or engage in other protest activities within 300 feet of any residence, cemetery, funeral home, church, synagogue or other establishment during or within one hour before or after the conducting of an actual funeral or burial service at that place. Picketing or protest is also illegal within 300 feet of any funeral procession.
B. Federal or Other Law
The National Park Service regulation prohibits the scattering of cremated remains except pursuant to the terms of a permit by the rules of each particular park. Each park will have its own rules.
Burial at sea may be conducted by any U.S. citizen with the exception of a convicted felon and veterans without an honorable discharge. EPA regulations govern the disposition of cremated and non-cremated burial at sea beyond three miles from the coast. A Coast Guard permit is required for such a burial. Within 30 days of the disposition, a registration must be filed with the regional administrator of the EPA.
Burial in inland waters (within 3 nautical miles of the coast) requires a permit from the appropriate organization. The Clean Water Act makes it unlawful to discharge refuse or pollutants into navigable waters without a permit. The Ohio EPA has jurisdiction for enforcing this act.
The FAA also regulates the dispersal of remains from an aircraft. In general, it is prohibited to drop any object from an aircraft that creates a hazard to persons or property. A permit from the FAA may be required for such a dispersal.
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