Appointing a Funeral Agent

When a person dies, who has the authority to make decisions about funeral arrangements and the disposition of remains?

People, including people within the same family, can have very different views about how a deceased loved one’s remains should be handled and what the funeral arrangements should be. Grief and stress over the loss of a loved one can cause emotions to run high and disagreements can occur over who has the final authority to make such decisions. The disposition of a decedent’s remains will be decided based on the laws of the state the decedent was a resident of at the time of his or her death. In some states this may be done by Will; in others by a separate document.

Interestingly, in New Jersey, a person cannot preauthorize the disposition of their own remains. While a person can pre-pay for funeral arrangements or burial plots and let their wishes be known to family members in a Living Will or Health Care Proxy, a person cannot make the final authorization as to the disposition of his or her own remains.

A person can appoint an agent to control the disposition of their remains, but if they have not done so, New Jersey law provides an order of priority as to who has decision-making authority over the decedent’s remains. The order of priority is as follows:

  • The surviving spouse, civil union partner or domestic partner;
  • A majority of the surviving adult children of the decedent;
  • The surviving parent(s) of the decedent;
  • A majority of the brothers and sisters of the decedent;
  • Other next of kin of the decedent, in order of degree of relationship; or
  • If no known relatives, any other person acting on behalf of the decedent.

Trouble arises when family members with equal standing, such as parents, adult children or siblings of the decedent, do not agree as to the disposition of remains. For example, if a decedent died without appointing an agent and was only survived by two adult children, each child would have equal priority as the decision maker. One child might want the decedent to be cremated and the other child might object to cremation on religious or other grounds. If the children cannot come to an agreement, it would be up to the court to make such a determination.

What can an individual do to ensure that their wishes are followed instead of having the court decide? In New Jersey, he or she can appoint a person to control the funeral and disposition of remains (a “Funeral Agent”) pursuant to NJSA 45:27-22. Under that law, the appointed Funeral Agent has final authority over the disposition of remains. This is true even if the Funeral Agent would have been later in the order of priority in the event that no agent was appointed. For example, a person could appoint their adult child as Funeral Agent and that child would have ultimate authority over the funeral arrangements even if the decedent left a surviving spouse. Appointing a Funeral Agent is the best way to ensure that a person’s wishes will be followed and that any intrafamily disputes will stay out of the courts.

To be effective, the appointment of a Funeral Agent must be made in the decedent’s Will. The Funeral Agent does not have to be the Executor of the Will. Moreover, the Will does not have to be probated in order for the Funeral Agent to have the authority to act.

Alternatively, in New York, funeral agent appointments made in a Will generally lack authority. New York has created its own statutory Appointment of Agent to Control Disposition of Remains under Public Health Law 4201. The document appointing the agent must be signed, dated and witnessed in order to be effective. If a decedent does not appoint an agent to control the disposition of their remains, New York also provides an order or priority as to who has such decision-making authority:

  • The decedent's surviving spouse;
  • The decedent's surviving domestic partner;
  • Any of the decedent's surviving children eighteen years of age or older;
  • Either of the decedent's surviving parents;
  • Any of the decedent's surviving siblings eighteen years of age or older;
  • The decedent’s guardian appointed during their life;
  • Any person eighteen years of age or older who would an intestate taker, with the person closest in relationship having the highest priority;
  • A duly appointed fiduciary of the estate of the decedent;
  • A close friend or relative who is reasonably familiar with the decedent's wishes; or
  • A chief fiscal officer of a county or a public administrator appointed pursuant to article twelve or thirteen of the surrogate's court procedure act, or any other person acting on behalf of the decedent, provided that such person has executed a written statement pursuant to subdivision seven of this section

Although the decision to appoint a Funeral Agent is not generally what brings a person to create a Will, it is an important part of a comprehensive estate plan and is one more way that a person’s final wishes can be honored.

If you would like to speak with us regarding the appointment of a Funeral Agent or any other aspect of your estate plan, please do not hesitate to contact us.