What is a Funeral Agent, and Why Do I Need One?

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Estate Planning & Tax Controversy
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In 2003, the New Jersey Legislature amended the New Jersey Cemetery Act to permit individuals to designate a personal representative, known as a funeral agent, to control the individual’s funeral arrangements and disposition of his/her remains.  See N.J.S.A. 45:27-22(a).  The designation of a funeral agent must be included in your will to be enforceable.  If a decedent does not appoint a funeral agent in his or her will, the statute sets forth the order of those with the right to control the decedent’s funeral and the disposition of his/her remains.  The order of priority set forth in the statute is as follows:

  1. The decedent’s surviving spouse, civil union partner, or domestic union partner;
  2. A majority of the surviving adult children of the decedent;
  3. The surviving parent or parents of the decedent;
  4. A majority of the brothers and sisters of the decedent; and
  5. Other next of kin of the decedent according to the degree of consanguinity.

What happens when the people set forth in the statute can’t agree?  In a recently published decision, Matter of the Estate of John E. Travers, Jr., No. P-2253-2017, 2017 WL 10841709 (N.J. Super. Ct. Ch. Div. Nov. 17, 2017), the New Jersey Superior Court provided guidance over how to resolve disputes where individuals with equal statutory standing cannot agree on funeral and burial arrangements.

John E. Travers, Jr., died unexpectedly at the age of twenty-two.  Travers was not married, and had no children.  He did not have a will, and therefore had not appointed a funeral agent.  Pursuant to the statute, John’s parents had the first priority to control his funeral and the disposition of his remains.  However, John’s parents, who were divorced when John was 14, could not agree on the appropriate disposition of their son’s remains.  John’s father wanted John’s remains to be buried, while his mother wanted John’s remains to be cremated.  Each parent provided the court with reasonable, personal and emotionally-charged explanations for their respective positions.

The Court identified four factors to be considered in any dispute where next-of-kin of equal statutory standing cannot agree on funeral arrangements and disposition of remains.  Those factors are:

  1. Which person is more likely to abide by the wishes and desires of the decedent as expressed through communications with another, to the extent the decedent made those communications;
  1. Which person established a closer relationship to the decedent, and is thereby in a better position to surmise the decedent’s desires and expectations upon death;
  1. Which person is more likely to adhere to the religious beliefs and/or cultural practices of the decedent, to the extent that funeral arrangements and/or disposal of remains are addressed by such beliefs and practices, and to the extent that those beliefs and practices are relevant to inform the court as to the wishes, desires and expectations of the decedent upon death; and
  1. Which person will ultimately be designated as administrator(s) of the estate and act in the best interests of the estate to: (a) determine the costs, funeral arrangements and/or disposition of human remains; (b) assess the ability of the estate to pay for the costs of funeral arrangements and/or disposition of human remains; and (c) arrange for alternative funding and/or resources to effectuate the funeral and/or disposition in the event that the estate does not have the ability to pay for the costs of human remains.

After reviewing these factors, the court concluded that John’s father should be granted the authority to control the disposition of his son’s remains, because John had a closer relationship with his father than with his mother.  John lived with his father following his parents’ divorce, and was employed full-time by his father in the family business.  John only saw his mother sporadically and primarily communicated with her through telephone calls.  Based on these facts, the Court concluded that John’s father was in a better position to surmise John’s wishes and desires for the disposition of his remains.

The appointment of a funeral agent in your will is extremely important.  It is the best way to avoid a dispute between family members and to ensure that your wishes regarding your funeral and the disposition of your remains are honored.  While sharing your wishes with family members prior to your death is important, it is not enough.  What if you were to die while you were in the middle of a divorce?  Your soon-to-be ex-spouse would control your funeral.  Or if you outlive your close family members, your funeral could be left in the hands of a distant family member with whom you have not had any relationship.

Your funeral agent should be someone who you are confident will adhere to your wishes, regardless of the order of priority established by the statute, and regardless of their personal beliefs.  Your funeral agent does not have to be the same person you appoint as the executor of your will – you can appoint a family member, a friend, or even a clergy member.

We encourage you to contact the firm if you have any questions about the appointment of a funeral agent.

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