Should this clause be in your Will?

By Tee Rogers

This verbiage can save so much heartache….

In some instances, we may designate a person who is not our next-of-kin to make final arrangement decisions.  When it comes time for cremation authorization, other powers granted in the will or other documents do not override FS 497 (cited below).

To designate someone who is not next-of-kin the ability to sign for cremation, take possession of ashes, and other important functions, there must be a clause in the will stating that the individual gives consent for control of disposition and cremation authorization to that designee.  Otherwise, the Funeral Home will search for – and defer to – next-of-kin.

So often i hear people say that they printed a will template from the internet, so they have everything in order. To ensure your final wishes are known and honored, it is important to meet with an estate planning attorney AND a funeral & cemetery pre-planning advisor.

Having the information organized and planned – and vetted through professionals who can provide important guidance – will greatly reduce emotional and financial stress. It is much better to have that information prepared and not need it, than for your loved ones to need it and not have it.

Note – Florida law requires that all wills must be filed with the local court within 10 days of the death. If probate proceedings are needed, the court will determine if the will is valid. While in probate, the funeral home technically cannot use the will to inform decisions. If this is a concern for you, ask your attorney for guidance.

4 Stories: What can happen without this clause?

1. An unmarried, childless life partner couple decides together that they each do NOT want to be cremated; they prefer burial. Cremation terrifies them. One of them passes, and the decedent’s parent makes the arrangements for a direct cremation. The surviving partner is devastated by their loss, by family rift, and by the inability to fulfill their loved one’s wishes.

2. A single person wants their best friend, who is aware of and will honor their final wishes, to have the ability to make arrangements. The person passes away. Their estranged next-of-kin, with whom they did not get along, is making the decisions about disposition and arrangements and ignores the friend’s pleas to honor the deceased’s wishes.

3. A person left an inter vivos (written while still living) authorization for cremation that is honored by the funeral home, but no designee for control of disposition. Their life partner, to whom they were not married, is unable to pick up their loved one’s ashes because they are not next of kin; the decedent’s parents refuse the ashes to the partner because they don’t approve of or recognize the relationship.

4. A couple shared with their family that they wish to be scattered at sea together with no religious ceremony. One spouse passed years ago and was cremated; the second spouse passes while their teenage children are still too young to have authority over decisions, and there is no designee for final arrangements. The decedent’s Catholic parents refuse the children to have keepsake urns because it would divide the ashes, and they hold a Catholic mass and bury their child, along with the ashes of the spouse, in a Catholic cemetery. The children are devastated that they cannot honor their parents’ wishes.

Schedule a consultation with a funeral & cemetery pre-planning advisor today.

Florida Statutes, Chapter 497  FUNERAL, CEMETERY, AND CONSUMER SERVICES

Excerpted from Online Sunshine: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0400-0499/0497/Sections/0497.005.html

497.005 Definitions

(43) “Legally authorized person” means, in the priority listed:

(a) The decedent, when written inter vivos authorizations and directions are provided by the decedent;

(b) The person designated by the decedent as authorized to direct disposition pursuant to Pub. L. No. 109-163, s. 564, as listed on the decedent’s United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died while in military service as described in 10 U.S.C. s. 1481(a)(1)-(8) in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard;

(c) The surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased;

(d) A son or daughter who is 18 years of age or older;

(e) A parent;

(f) A brother or sister who is 18 years of age or older;

(g) A grandchild who is 18 years of age or older;

(h) A grandparent; or

(i) Any person in the next degree of kinship.

In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.