Decedent's Wishes

Laws vary from state to state but a person generally may provide written directions for the disposition of the person's remains in a will, a prepaid funeral contract, or a written instrument (document) signed and acknowledged by the person.

A party to the prepaid funeral contract or a written contract providing for all or some of a decedent's funeral arrangements who fails to honor the contract may be liable for the additional expenses incurred in the disposition of the decedent's remains because of the breach of contract.

The directions may govern the inscription to be placed on a grave marker attached to any plot in which the deceased person (decedent) had the right of sepulture at the time of death and in which plot the decedent is subsequently interred. The directions may be modified or revoked only by a subsequent writing that was signed and acknowledged by the decedent. The person otherwise entitled to control the disposition of a decedent's remains must faithfully carry out the directions of the decedent to the extent that the decedent's estate or the person controlling the disposition are financially able to do so.

When a decedent has not provided directions in writing for the disposition of the decedent's remains, state statutes (laws) may identify the persons who have the right to control the disposition (including cremation) of the decedent's remains, and the order of such decisionmakers.

Any dispute among the persons specified in the statute may be resolved by a court with jurisdiction over probate proceedings for the decedent, regardless of whether a probate proceeding has been initiated.

State law may provide that a cemetery organization or funeral establishment will not be liable for refusing to accept the decedent's remains, or to inter or otherwise dispose of the decedent's remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.

Death Certificate

A death certificate generally must be filed soon after a person’s death (within ten days, for example), and before the body can be disposed of (burial or cremation).

Laws regarding burial, entombment, and cremation of a deceased person (decedent) vary from state to state and are usually located in a state’s statutes. Unless a decedent's whole body has been donated for the advancement of medical or forensic science, the body may generally be disposed of by:

• burial—interred underground;

• entombed in a crypt within a mausoleum, above ground; or

• cremation.

Burial

A decedent may be buried in

• a state-licensed cemetery;

• a national cemetery, if the decedent is an eligible veteran or member of the U.S. armed forces (Army, Navy, Air Force, Marines, Coast Guard), or a spouse, dependent, or eligible parent of such a veteran or member of the U.S. armed forces—see 38 U.S.C. §2402; 38 C.F.R. §38.620;

• a state veterans cemetery (same or similar eligibility requirements as for a national cemetery);

• a family cemetery; or

• a fraternal or community cemetery.

Cremation

A decedent's body can also be disposed of by cremation. Cremation means the irreversible process of reducing human remains to bone fragments through direct flame, extreme heat, and evaporation. The term may include pulverization, which is the process of reducing identifiable bone fragments after cremation and processing granulated particles by manual or mechanical means.

Cremations generally must be conducted by a crematory establishment—a business that operates a crematory for which a license is required. A crematory establishment must:

• release the cremated remains to a representative of the funeral establishment that delivered the deceased human remains to the crematory establishment;

• release the cremated remains to the person authorized to receive the remains on the cremation authorization form;

• ship the remains to the shipping address provided by the authorizing agent on the cremation authorization form not later than the 30th day following the date of cremation; or

• release the cremated remains according to written directions for the disposition by cremation of the deceased person's human remains as provided by state statute.

Payment of Costs for Burial or Cremation

A person exercising the right to control the disposition of remains under state law—other than a qualified executor or administrator of the decedent's estate—is liable for the reasonable cost of interment and may seek reimbursement for that cost from the decedent's estate.

When an executor or administrator exercises the right to control the disposition of remains under state law the decedent's estate is generally liable for the reasonable cost of interment, and the executor or administrator is not individually liable for that cost.

Some of the common resources for payment of burial or cremation costs are:

• a prepaid funeral contract;

• employer-provided or private life insurance, or other burial or funeral insurance;

• if the decedent's death was caused by an injury suffered in the course and scope of the decedent's employment and covered under the state workers' compensation law, the workers' compensation insurance carrier may be required to some or all of the reasonable burial expenses;

• if the decedent was the beneficiary of a trust at the time of death, the trustee may have the authority to pay the decedent's funeral and burial expenses;

• if the decedent was a peace officer or employee of the state’s Department of Criminal Justice and was killed in the line of duty—but had not qualified for an annuity under an employees' retirement plan—the state may be required to pay the funeral expenses for the deceased officer or employee, as provided by state statute;

• if the decedent's death was caused by criminal conduct, the attorney general may pay the decedent's funeral and burial expenses, including the expenses of an immediate family member or household member for traveling to and attending the funeral, under some state crime victims’ compensation laws (statutes); and

• if funds are needed from the decedent's estate to pay the funeral and burial expenses, a person qualified to serve as an administrator of the decedent's estate may file an application requesting emergency intervention by a court exercising probate jurisdiction to provide for payment of the decedent's funeral and burial expenses.

In Texas, individuals can provide written instructions for the disposition of their remains through a will, a prepaid funeral contract, or another signed and acknowledged document. If a party to a prepaid funeral contract or similar agreement fails to honor it, they may be liable for additional expenses incurred due to the breach. The decedent's wishes regarding their remains and grave marker inscriptions must be followed by the person in charge of disposition, provided there are sufficient funds in the estate or available to the person in control. If no written directions exist, Texas law specifies the order of individuals who have the right to control the disposition of the decedent's remains. Disputes may be resolved in probate court. Texas law also protects cemetery organizations and funeral establishments from liability when there is a dispute over the disposition of remains until a court order is received. A death certificate must be filed shortly after death, typically within ten days. Burial options in Texas include state-licensed cemeteries, national or state veterans cemeteries, family cemeteries, and fraternal or community cemeteries. Cremation must be performed by a licensed crematory establishment, with the remains handled according to state regulations. The costs for burial or cremation can be charged to the person controlling the disposition or the decedent's estate, with potential reimbursement from various sources such as insurance, workers' compensation, trusts, or state funds in certain circumstances. In cases where estate funds are needed for funeral expenses, an emergency court intervention can be requested.