Ensuring Your Final Wishes Are Carried Out: Burial, Cremation, and Pre-Need Funeral Planning

Written by: Wills, Trusts, & Estate Administration

Do you ever wonder:  Will my loved ones carry out my wishes regarding burial or cremation?  And if you have that concern, is there any way to ensure that your final wishes are carried out?  Think about it, there is probably a provision in your Will or your Advance Directive for Healthcare that states what you prefer.  But let’s be realistic, by the time your Will is pulled out after your death, you’ve already been buried or cremated!  The question is, can you absolutely control which happens to you after your death?

Most often, a decedent’s burial or cremation transpire without a problem.  But not infrequently, issues do arise.  For example, questions may include: Who has the priority right to make the determination as between burial and cremation?  What happens if family members disagree about burial or cremation plans?  Does the spouse automatically have priority? What if you have children from different marriages who disagree?  What if the closest next of kin cannot be located?

A. In Georgia, these answers are provided by the Official Code of Georgia (O.C.G.A.) at Section 31-21-7.

First, a person may certainly provide his or her own burial/cremation instructions, and if accomplished through a pre-need contract with a funeral home, these instructions will be followed.  The above referenced Code section provides under paragraph (a) that a person over 18 years old “may direct the location, manner and condition for the disposition of his or her remains and for funeral services” by entering into a pre-need contract with a funeral home.  In light of this, it is advisable to consider entering into a pre-need funeral contract, particularly if you have concerns that there could be arguments over the disposition of your remains at death, the type of service that is performed or if you do not have any immediate or close family members.

Where there is not a pre-need contract in place, Georgia law sets forth the procedure to determine how the decision is made.  If the decedent does not have a pre-planned contract with a funeral home, the power to make the decision is vested in the following order:

1. The decedent’s nominated health care agent under an Advance Directive for Health Care.

2. A person designated by the decedent pursuant to an affidavit executed in accordance with O.C.G.A. 31-21-7(b)(2)(B).

3. The surviving spouse.

4. The sole surviving child, or if more than one, the majority of the surviving children.

5. The surviving parent(s).

6. The surviving sibling, or if more than one, the majority of the surviving siblings.

7. The surviving grandparent, or if more than one, the majority of the surviving grandparents.

8. The guardian of the person under a legal guardianship.

9. The personal representative (Executor or Administrator) of the decedent’s estate.

10. If none of the above exist or can be located, any person willing to assume responsibility after attesting that a good faith effort has been made to find any of the above persons.

Finally, note that there does exist a procedure to have the probate court award this authority pursuant to O.C.G.A. 31-21-7(d), but this can be time consuming and incurs legal fees that could have otherwise been avoided with adequate planning.

B. In Alabama, these questions are answered by Alabama Code § 34-13-11.  Paragraph (a) of that section is virtually identical to the Georgia Code Section in providing for pre-need funeral home contracts to control.

Where there is not a pre-need contract in place, the Alabama Code provides the following priorities:

1. The person designated under any U.S. Department of Defense form if the decedent died while serving on active duty in any branch of the military.

2. The person designated by the decedent in an affidavit executed in accordance with Alabama Code 34-13-11(a)(2).

3. The surviving spouse, if any.

4. The sole surviving child, or if more than one, the majority of the surviving children.

5. The surviving parent(s).

6. The surviving sibling, or if more than one, the majority of the surviving siblings.

7. The surviving grandparent, or if more than one, the majority of the surviving grandparents.

8. The guardian of the person under a legal guardianship.

9. The personal representative (Executor or Administrator) of the decedent’s estate.

10. The person in the classes of the next degree of kinship, in descendant order, under the laws of descent and distribution of Alabama.

11. The public officer, administrator or employee responsible for arranging the final disposition of remains if the same is or becomes the responsibility of the state.

12. If none of the above exist or can be located, any person willing to assume responsibility after attesting that a good faith effort has been made to find any of the above persons.

Most other states likewise have similar statutes.

C. Summary.  In summary, you do have the ability to control whether you are buried or cremated, what is done with your ashes, what type of service you will have (eg, open or closed casket, religious or secular, etc.) as well as additional details about the specifics of your service, by entering into a pre-need contract with a funeral  home.