Appointing a Funeral Agent

Appointing a Funeral Agent

A funeral agent is an individual named by the deceased in his or her will as the person in charge of making funeral arrangements. The rights of the funeral agent supersede the right of all others, including the spouse and other relatives such as children and parents.

Executors of estates, friends, clergy members, social workers, a specific relative and others can be named funeral agents. Funeral directors, however, never should never be named funeral agents.

After the death and before the will is probated, the executor will inform the funeral agent that they are in charge of the funeral and let them know how much money is available to spend on arrangements.

Who Needs a Funeral Agent?

If you think your relatives will not honor your funeral wishes or prearrangements, or if you are on bad terms with relatives, do not know where they are or do not have any relatives living, you should appoint someone you trust as your funeral agent.

The funeral agent option is the legal way for you appoint a specific person to arrange your funeral.

Appointing a funeral agent is good way of ensure that you get the funeral you want.

How to Appoint a Funeral Agent

In order to appoint someone as your funeral agent, you will need to visit an attorney. Inform the attorney you want to name a funeral agent in your will according to N.J.S.A. 45:27-22. The attorney will need to either draw up a new will or amend your existing will to include language similar to this:

Appointment of Funeral and Disposition Representative

"I hereby nominate, constitute and appoint [insert name] to serve as my Funeral and Disposition Representative, pursuant to P.L. 2003, c. 261. My Representative shall have the authority and power to control the arrangements for my funeral and the disposition of my remains. My Executor shall notify my Representative of this appointment, and shall advise my Representative of the financial means available to carry out the Funeral and Disposition arrangements. In the event [insert name] should predecease me or for some other reason not qualify to serve as my Funeral and Disposition Representative, then I nominate, constitute and appoint [insert name of alternate] as my Funeral and Disposition Representative.”

45:27-22 Control of funeral, disposition of remains.

a. If a decedent, in a will as defined in N.J.S. 3B:1-2, appoints a
person to control the funeral and disposition of the human remains, the
funeral and disposition shall be in accordance with the instructions of
the person so appointed. A person so appointed shall not have to be
executor of the will. The funeral and disposition may occur prior to
probate of the will, in accordance with section 40 of P.L. 2003, c. 261
(C. 3B:10-21.1). If the decedent has not left a will appointing a person
to control the funeral and disposition of the remains, the right to
control the funeral and disposition of the human remains shall be in the
following order, unless other directions have been given by a court of
competent jurisdiction:

(1) The surviving spouse of the decedent or the surviving domestic
partner.

(2) A majority of the surviving adult children of the decedent.

(3) The surviving parent or parents of the decedent.

(4) A majority of the brothers and sisters of the decedent.

(5) Other next of kin of the decedent according to the degree of
consanguinity.

(6) If there are no known living relatives, a cemetery may rely
on the written authorization of any other person acting on behalf
of the decedent.

For purposes of this subsection "domestic partner" means a domestic
partner as defined in section 3 of P.L. 2003, c. 246 (C. 26:8A-3).

b. A cemetery may permit the disposition of human remains on the
authorization of a funeral director handling arrangements for the
decedent, or on the written authorization of a person who claims to be,
and is believed to be, a person who has the right to control the
disposition. The cemetery shall not be liable for disposition pursuant to
this authorization unless it had reasonable notice that the person did
not have the right to control the disposition.

c. A cemetery shall not bury human remains of more than one person in a
grave unless:

(1) directions have been given for the burials in accordance with
this section on behalf of all persons so buried; or

(2) the rights to be buried in the grave were sold by the cemetery with
explicit provision allowing separate sales of rights to burial at
different depths in the grave.

d. A person who signs an authorization for the funeral and disposition
of human remains warrants the truth of the facts stated, the identity of
the person whose remains are disposed and the authority to order the
disposition. The person shall be liable for damages caused by a false
statement or breach of warranty. A cemetery or funeral director shall not
be liable for disposition in accordance with the authorization unless it
had reasonable notice that the representations were untrue or that the
person lacked the right to control the disposition.

e. An action against a cemetery company relating to the disposition of
human remains left in its temporary custody may not be brought more than
one year from the date of delivery of the remains to the cemetery company
unless otherwise provided by a written contract.

Let’s face facts. Many families are dysfunctional and nothing brings family tension to the forefront quicker and more vehemently than an unexpected death. And the first issue to be confronted is the funeral arrangements.

-Tom Barron

***The information included in this newsletter is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.