This column first appeared in the San Antonio Express News and other Hearst Newspapers on July 15, 2019.
Dear Mr. Premack: Two years ago, we had our Wills, Powers of Attorney, and Medical Powers of Attorney done by the JAG office on base. They also typed a page saying we want to be cremated and to see that instruction in our Wills. The JAG could not do other property protection documents, so we went to a private sector lawyer. That lawyer did not want to include the cremation information in our Wills. We had to ask multiple times before he agreed. What was an otherwise great experience was soured by the attorney’s reluctance to include the cremation sentence in our Wills. Why not include a reference to a cremation in a Will, like the military was willing to do? MM
Expressing your wishes about your funeral, burial and/or cremation is very important. Your family and those responsible for you should know and be required to follow your instructions. And that is why, to a large extent, the private lawyer may have been reluctant to include the instructions in your Will. All too often, family members do not see the Will until after the funeral, when they start to think about legal arrangements and probate.
If the funeral has already happened, and afterwards the family/executor see that your Will contained other instructions, they are not going to reverse course. What is done is done. Consequently, you want to be sure your instructions regarding disposition of your remains are communicated clearly and in a binding legal manner to those who must carry out the instructions.
There are four ways to communicate your funerary instructions. First, you can verbalize your preferences to those responsible, or give them a letter. It sounds like the JAG prepared an informal typed page of instructions for sharing with your family. All of these approaches are of dubious legal effect.
Second, you can state the instructions in your Will. Texas law does give legal weight to statements in your Will about funeral plans. But as I said, while there is no harm in including instructions in your Will, the Will is too often overlooked until after the funeral to be a reliable resource.
Third, you can pre-plan, and often pre-pay, with a reputable mortuary or a cremation service. They will provide documentation about the arrangements, and often a wallet card referring to your plans. You should share those plans with those who will be responsible for finalizing your arrangements, like your executor and adult children. Pre-paid plans are binding because they are based on a contract between you and the funeral establishment.
Finally, you can sign a separate formal legal document called Appointment of Agent for Disposition of Remains as authorized by the Texas Health and Safety Code. In it, you name an Agent, and alternates, to be responsible for your funeral arrangements and declare exactly how you want to be treated (for instance, cremation with ashes scattered, burial at the national cemetery, or a religious ceremony based on your traditions). The Agent must acknowledge responsibility to pay for your funeral if you have not already so provided. It must be signed by you before a notary, and must be signed by the Agent before action is taken.
The Appointment of Agent is the most reliable legal approach, especially if you desire cremation. When you die and before the cremation, the funeral director will require written consent from an authorized person. The Agent you select is authorized, and can override any objections to cremation that may be offered by family members with a different point-of-view regarding proper disposition of remains.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.