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July 16, 2009
YOUR FINAL WISH
For most of us, our final appearance on this earth is at our wake. Some wish to maintain control until the very last second, by putting in writing the exact details of how their funeral shall proceed.
Family tension can build when the deceased has expressed their wishes of how their funeral will be conducted, and after they are gone, remaining family members do not honor those wishes. You might remember the controversy back in 2002 when former slugger, Ted Williams died.
Almost immediately after Ted Williams died, he was flown to Arizona by his son John Henry, to be frozen. A Sports Illustrated article stated “his head sits on a shelf in a liquid nitrogen-filled steel can, while his body is in the same room, stored upright in a liquid nitrogen-filled, nine-foot-tall cylindrical steel tank.” I wonder if Ted knew that they were going to chop off his head and freeze it in a bucket when he supposedly made the decision to undergo this procedure. It sure doesn’t make any sense to me.
In Massachusetts, the wishes of the decedent govern the disposition of remains. If there are no expressed wishes, the decedent’s surviving spouse has the right to possession of the body, with the duty of burial. If there is no surviving spouse, the next of kin have the right to possession, with the duty of burial. In the event of conflict, the desires of the surviving spouse supersede those of next of kin. As we saw in the Ted Williams case, next of kin can disagree, so I’d like to recommend some planning options.
We now know that the decedent’s wishes govern the funeral arrangements. The issue is, how can you express your wishes so that your request will be honored? Perhaps the clearest way to express your wishes regarding your funeral is to pre-arrange your funeral with a funeral director. Prepaying your funeral also freezes (no pun intended) the cost of the funeral. You will not be subject to cost increases between the time you make the arrangements and upon the actual funeral. Additionally, you should prepare a letter of instructions specifying where you want to be buried as well as details of the desired funeral arrangements. This letter should be given to the funeral director as well as family members.
Stating your funeral directions in a Will can be done but problems may arise if your will cannot be located in time for the funeral. It is for this reason that we prefer the letter of instruction. Some attorneys prefer not to include funeral directions in the will. If you really want to include funeral directions in your will I recommend that any bequests made to someone who could be expected to make your funeral arrangements be contingent upon following up with your wishes.
This article gives general information and not specific advice on individual matters. Persons wanting individualized advice on matters discussed should contact an advisor experienced in those matters. To the extent this article provides information on legal matters, it is based on law in effect in Massachusetts on the date of posting (laws in effect in other states are often quite different).
Ronald H. Surabian is a CPA and attorney who works at the Elder Law Center in Saugus, Massachusetts. He also holds Masters in accounting and a Masters in tax law. He currently serves on the board of directors of the Friends of the Saugus Senior Center and is a member of the Massachusetts Chapter of the National Academy of Elder Law Attorneys. If you have any questions, please call me at the Elder Law Center, One Essex Street, Saugus, MA 01906 (781)233-4444. To view this or any prior article, please visit our web site at www.elderlawcenter.org