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What’s An Affidavit of Burial/Cremation?

June 29, 2012
Estate Planning, Investing
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An estate planning lawyer can draw up an affidavit of burial/cremation for you. It’s usually just a simple document that directs a funeral director to follow the instructions of the person designated in the affidavit. If you have very specific wishes for your funeral or cremation, you should let your partner know separately what they are. An affidavit of burial/cremation doesn’t get into legally dictating the details themselves, it just hands the authority to make decisions to the authorized person.

Relying on instructions contained in your last will and testament to make sure your partner is in charge of your funeral is probably not the most secure. Many people choose to leave burial instructions in their will to spell out their specific wishes for the details of their funeral, or to set aside money to be left to cover its costs. Sometimes making someone the executor of your estate is enough to give them power to carry out your wishes and empower them to make their own decisions about the disposal of your body.

But ‘executor of estate’ isn’t always enough

However, executor of estate status won’t always be enough to guarantee your spouse will get to make funeral decisions. If a written affidavit doesn’t exist, states such as California and Kansas have histories of giving first priority to the holder of healthcare power of attorney to make funeral decisions, for instance, rather than the executor of the estate. So you should check carefully with lawyers in your state. It’s probably best to draw up an affidavit of burial/cremation so that a legal written record of your intent exists, separate from your will. Executors of estate also run into the issue of probate. Again, state laws vary widely, but at times an executor of an estate has very limited powers until an estate has made its way out of probate court.

The legal term for getting to control a deceased person’s burial or cremation is “right of sepulcher.” There is a long track record of civil damages cases being brought when next-of-kin feel they have lost their right of sepulcher (for instance, if the hospital failed to notify the next-of-kin promptly of the death, or performed an autopsy without proper consent). Going against the next-of-kin’s wishes for a funeral can open you up to costly civil damages, so getting the right to make decisions spelled out in writing is very important.