Updated: Jan 6, 2022
Dear Mr. Premack: Mother passed away yesterday, and my brother and I are at odds over the funeral. His wife is very controlling and is pushing to have mother’s remains cremated. I want a traditional funeral where she is buried next to our father. We only have a few days to work this out. What does the law say? Who gets to decide what type of funeral we’ll be having? – K.C. via Email
If your mother left instructions, they get top priority. Legally, a person may provide funeral directions in a Will, a pre-arranged funeral or a written instrument signed and acknowledged by that person. Although most Wills do not go beyond instructing a “decent burial,” any of these techniques can be used to govern interment or cremation and can even dictate the inscription to be placed on the grave marker.
If the directions are in the Will, then for the limited purpose of handling the funeral there is no need that the Will first be probated. The person authorized to control the disposition must promptly carry out the directions to the extent that they are affordable to the estate or the Agent. If that alleged Will is later denied probate or is declared invalid, the funeral directions remain valid to the extent they were acted on in good faith. Again, probate of the Will is not required – just the appearance of a document that purports to be the Will and is acted on in good faith.
The directions might also be in a legal document called an “Appointment of Agent to Control Disposition of Remains.” It is essentially a power of attorney, but it takes effect at the moment of death, contrary to typical powers of attorney that cease at the moment of death.
That Appointment document may include very explicit and legally binding instructions, including the requirement of cremation or a traditional funeral. It must be signed by the principal (and acknowledged before a notary) and it must be signed by the agent. When the agent signs it, the agent is also agreeing to pay for the funeral if the estate’s funds prove inadequate.
If your mother did not leave any written instructions, then the Texas Health & Safety Code authorizes the following persons, in the priority listed, to control disposition, including cremation. They also bear liability to pay the reasonable cost of burial, from their own funds if the estate does not have adequate funds. They are: 1) The surviving spouse; 2) Any one of the surviving adult children; 3) Either one of the decedent’s surviving parents; 4) Any one of the decedent’s surviving adult siblings; or 5) Any other adult who would inherit under the intestacy laws.
Since you are both “adult children,” you and your brother on equal footing (but legally his wife is left out of the picture). If you and he cannot come to an agreement, your dispute can be resolved in court — but listen to advice from your religious advisor, the funeral counselor and family to settle the argument. The funeral home can legally refuse to accept your mother’s remains or to conduct the funeral or cremation until it receives a court order or other suitable confirmation that the dispute has been resolved.
First published July 20, 2004
Paul Premack, JD, CELA