Two things in life are certain: Death and Taxes. We’ll discuss taxes some other time because today we’re discussing the disposition of remains after death.
One day, you will resign your position among the living, just as millions of other people before you have done. When you pass away, your body will come into the possession of a funeral home. Before the funeral director may proceed with service, they will require the approval of your agent.
Who can approve of these arrangements and how do you ensure funeral arrangements are held in a manner consistent with your wishes?
Texas provides a list of who can serve as an agent for your disposition of remains.
Who Can Serve as an Agent for Disposition of Remains?
The following people, in order of priority, have the right to control the disposition, including cremation, of your remains:
- the person designated in a written instrument signed by the decedent;
- the decedent’s surviving spouse;
- any one of the decedent’s surviving adult children;
- either one of the decedent’s surviving parents;
- any one of the decedent’s surviving adult siblings;
- any one or more of the duly qualified executors or administrators of the decedent’s estate; or
- any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.
Not only do the people on the above list have the right to control your disposition of remains, but they also have a duty under the law to do so.
Legally Required to Dispose of Remains
Under Texas law, the person who has the right to control your disposition of remains is required to actually do so. In fact, they are also “liable for the reasonable cost of interment.”
The person who has the right to control your disposition of remains must make final arrangements (or appoint someone else to make final arrangements) within 6 days of them learning of your death, or within 10 days after the date of your death; whichever comes first.
If that person fails to dispose of your remains by that deadline, then they are presumed to be unwilling, or unable, to control the disposition.
If that happens, then their right to control your disposition of remains is terminated and the right passes down the list to the next person in line.
Conflict Between Agents?
If you’ve appointed someone to dispose of your remains, and provided them with instructions on how you want your funeral arrangements to be handled, then there is probably little chance of a conflict. However, if you rely on the government’s list, then there could be some disagreements among your children, parents, or siblings.
Any dispute among any of the persons listed concerning their right to control the disposition, including cremation, of your remains shall be resolved by a court with jurisdiction over probate proceedings, regardless of whether a probate proceeding has been initiated.
Can you imagine how costly, time consuming, and emotionally draining it would be for your loved ones to have to go through a hearing to have the Court determine who has the right to control the your remains?
We’ve had to represent clients in that situation before, and it is devastating every single time.
How to Avoid Costly Conflict
You can appoint an agent, in writing, to handle the disposition of your remains before the need arises.
Your written designation is legally sufficient under Texas law if:
- it designates a person to control the disposition of your remains,
- is signed by you,
- your signature is acknowledged by a notary public, and
- your agent, or successor agent, signs the instrument before acting as your agent.
If you want to avoid stress and conflict in your family because they are fighting over your funeral arrangements, consider speaking with an Estate Management Attorney.
Appointing an agent who can control your disposition of remains will bring your loved ones peace of mind while they are grieving the loss of you from their lives.
–Authored by Amanda E. Carter, Esq.
Matthew Harris Law, PLLC – Estate Management Division
1101 Broadway, Lubbock, Texas, 79401
Tel: (806) 702-4852 | Fax: (800) 985-9479