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NextSteps: Make last wishes known to all
Tuesday, October 14, 2008

Q: My husband and I completed our powers of attorney, wills and healthcare powers of attorney. At our lawyer's suggestion, we included our desires concerning our funerals and burials in our wills. After we left his office, we became concerned that our wills might not be available in time because he told us to put them in our safe-deposit box. When we called him, he told us to give copies of our wills to our closest child so that he would know our desires. But he lives 500 miles away. We want to make sure our wishes are carried out. Is there a better way?

A: Family disputes over funeral services and burial arrangements are more common than most think, especially where, for example, a second spouse is pitted against the children of the first marriage or children disagree about the arrangements that have been made.

The best way to make sure your funeral and burial plans are followed is to make them known to your family members in writing and in advance, and the best way to make sure your desires become reality is to preplan and prepay your arrangements with the cemetery, crematorium and/or funeral home of your choice while you are able to do so.

Almost all funeral homes will help you preplan your services and burial arrangements, including cremation, while you are alive. In this way, you can avoid potential family squabbles, remove a burden from grieving family members, negotiate your last wishes with a clear mind without being rushed or pressured, and make sure your instructions are carried out to the letter by stating them in writing and arranging payment in advance.

Preplanning includes prepayment to the funeral home for all services you desire. The funeral home is required by law to keep your funds in a trust account pending your death. We suggest that your contract with the funeral home be irrevocable. If you and your wife have burial-insurance policies, think about either assigning them to the funeral home or making the funeral home the beneficiary. At a minimum, let your personal representative or chosen family members and the funeral home know where these policies can be found. Otherwise, your funeral may be paid for before anyone discovers that your policies even exist. If you are a veteran, check into benefits that may be available and make sure a copy of your military papers is available so that the claim can be made in a timely manner.

If you choose to put directions about your last rites in your will, you may want to use a codicil (which is an amendment or addition to your will) that contains only your funeral and burial instructions. You should give your codicil to the funeral home or such other person you may appoint to be in charge of your arrangements. Check with your lawyer to see whether the law in your state protects a personal representative or funeral home acting according to burial instructions contained in a will or codicil.

But remember: If you change your mind about your arrangements and do not change your will or codicil, the conflict between the written document and subsequent oral instructions will surely cause a problem. Therefore, any changes you make should be put in writing and delivered to appropriate people, and the outdated documents should be picked up and destroyed.

Taking the Next Step: As part of the process of planning for incapacity and estate matters, you should consider making your funeral arrangements so your family knows in advance both your desires and what you want to spend. This is better than potential disputes and last-minute overspending by grief-stricken relatives.

Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist. You can learn more information about elder care law and write to the authors on www.nextsteps.net.
First published on October 14, 2008 at 12:00 am