In Estate Planning Awareness

Urns 929094 1920Dying can be an expensive proposition these days.  A traditional funeral service and burial can run upwards of $10,000 when all of the funeral and cemetery fees are taken into account.  This expense is one reason that people may consider cremation as a more affordable option.

There are different types of cremation options, just as there are different types of funeral options.  A cremation funeral service is intended to replace a traditional funeral service, and can average about $3,900.  A direct cremation can be even less expensive, as there will be no funeral services.  Rather, the cremation takes place once all necessary documentation is completed, and the remains are returned to the family afterward.

Necessary documentation?  Wait a minute.  What documentation is needed for cremation?  It should be as simple as telling my loved ones I want to be cremated, shouldn’t it?  Not necessarily.  In order for a cremation to take place, a funeral director has to have a cremation authorization form that identifies the human remains, gives the date and time of death, and provides notification as to  whether the death occurred due to a disease considered dangerous to the public health.  The form also has to be signed by an authorizing agent, has to state the authorizing agent’s relationship to the deceased person, and has to state that the authorizing agent in fact has the right to give permission for the deceased person to be cremated.

What if there is a disagreement as to whether a loved one should be cremated?  Who can sign that form and make that decision?  Suppose Dad dies and doesn’t leave a will or any other written documents expressing his last wishes.  Everyone in the family knows Dad wanted to be cremated, because he told them so on more than one occasion.  His three adult children are agreeable to that, but Mom is vehemently opposed.  Can the children overrule Mom by majority vote and have Dad cremated?  What if Mom and Dad had filed for divorce before Dad died?  What if Dad left a will saying he wanted to be cremated and named his brother Jim as the person who could make decisions as to the disposition of his remains?

Louisiana law specifies an order of priority as to who has the right to act as an authorizing agent for cremation.  First, any person arranging the cremation can act as authorizing agent if the deceased has given specific authorization in his last will or a written and notarized statement for cremation.  Second, the person named in the deceased’s last will or a written and notarized statement to control disposition of the deceased’s remains can act.  The surviving spouse is third in priority, but only if no pending petition for divorce was filed before the death of the deceased spouse.  A majority of the deceased’s surviving adult children are fourth in priority.  The order of priority continues with the deceased’s surviving parents, a majority of the deceased’s surviving siblings, and on to more distant kin.

In our example above, where Dad left no will, and his children wanted cremation but Mom didn’t, Mom would take priority in making that decision.  If Mom won’t sign the form, cremation isn’t an option.  If a divorce was pending, then the adult children would take priority and be able to make that decision.  If Dad left a will and gave his brother Jim the right to make the decision, Jim could sign the cremation authorization form even if Mom and the adult children disagreed.

If you are considering cremation instead of a traditional funeral service, it’s not enough just to tell your family.  Consult a qualified professional to ensure that your last wishes are documented accurately and in accordance with legal requirements.

Linda photo largeThe information provided is not intended to be legal advice and does not constitute an attorney/client relationship. You should consult with an attorney for individual advice regarding your own situation. Ms. Melancon has engaged in the practice of law in Ascension Parish for the last eighteen years. The primary focus of her practice is estate planning, probate, special needs planning and elder law. For more information or to attend an upcoming estate planning seminar, call her office at (225) 744-0027.


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