Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, May 24, 2016

Who Controls the Disposition of a Decedent's Remains?


Burial fightKyril Faenov did not make his desires known with respect to the disposition of his remains after death. His widow arranged to bury him at a cemetery in Seattle. However, his mother wanted to exhume his remains and place them in Oregon, and she petitioned the court for permission. The court denied the petition, stating that in absence of testamentary intent, the statutory kinship hierarchy controls such disposition for a decedent’s remains.

            The General Cemetery Act permits the control of human remains to vest in kinship priority, placing the surviving spouse above a surviving parent. Further, the court noted that the right to control burial circumstances that vest is a perpetual right. One that his widow enjoys unshared statutory priority in.

See Julianne Tobin Wojay, Mom Can’t Disinter Son’s Body Without Widow’s OK, May 18, 2016.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

May 24, 2016 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, May 18, 2016

When Political Humor Is Included In An Obituary

NolandWith the Presidential election coming up this year sometimes people can attempt to use political humor in unlikely places.  There was recently an obituary that made humorous remark about the upcoming election.  Provided below is a sample of the obituary:

NOLAND, Mary Anne Alfriend. Faced with the prospect of voting for either Donald Trump or Hillary Clinton, Mary Anne Noland of Richmond chose, instead, to pass into the eternal love of God on Sunday, May 15, 2016, at the age of 68. Born in Danville, Va., Mary Anne was a graduate of Douglas Freeman High School (1966) and the University of Virginia School of Nursing (1970). A faithful child of God, Mary Anne devoted her life to sharing the love she received from Christ with all whose lives she touched as a wife, mother, grandmother, daughter, sister, friend and nurse. Mary Anne was predeceased by her father, Kyle T. Alfriend Jr. and Esther G. Alfriend of Richmond. She is survived by her husband, Jim; sister, Esther; and brothers, Terry (Bonnie) and Mac (Carole). She was a mother to three sons, Jake (Stormy), Josh (Amy) and David (Katie); and she was "Grammy" to 10 beloved grandchildren. A visitation will be held from 5:30 to 7:30 p.m. on Tuesday, May 17, at Trinity United Methodist Church, 903 Forest Ave., in Henrico. A memorial service will be held on Wednesday, May 18, 1 p.m., with a reception to follow, also at Trinity UMC. In lieu of flowers, memorial contributions can be made to CARITAS, P.O. Box 25790, Richmond, Va. 23260.

See Obituary of Mary Ann Noland, Richmond Times-Dispatch, May 17, 2016.

Special thanks to Turney Berry for bringing this obituary to my attention.

May 18, 2016 in Current Affairs, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Sunday, May 8, 2016

When Funeral Home Managers Have To Deal With Abandoned Cremains

Funeral servicesThis article discusses a situation involving a funeral home manager trying to locate the relatives for a large number of unidentified cremated remains.  “The new manager of a Colorado funeral home is trying to find relatives for the cremated remains of about 170 people that were left in the building's basement after going unclaimed.”  The manager of the home Matt Boyle is not responsible for locating the relatives, but he wants to do it because he feels that it is the right thing to do.  The previous owner of the funeral home is currently under investigation for fraud and misconduct.  “Remains not claimed by May 29 will be included in a multi-denominational service at a cemetery.”  The funeral home is currently making an effort to contact as many family members as possible. 

See New funeral home manager puzzles over 170 abandoned cremains, Fox News, May 7, 2016.

May 8, 2016 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Thursday, April 21, 2016

Advanced Directives Are A Great Way To Ensure Your Future Wishes Are Respected

Pen and PaperAs old age approaches, many people begin to consider what their last wishes will be particularly in regards to how their property and health will be managed in the event of incapacitation. However, while many think, few plan and largely allow their wishes to be forgotten or ignored since they take no affirmative action to legally bind others to their desires. This is where an advanced directive can come into play since they allow for instructions to be given about care which must be followed by later decision makers. In addition to instructions, the advanced directive can appoint a specific person to carry out the wishes of the directive's creator. An advanced directive can be supplemented by a living will which dictates what level of end of life care will be given under certain circumstances. But, despite the advantages of these documents, relatively few people take advantage of what they have to offer although greater education about the benefits is slowly pushing more people in the right direction.

See Jamie Zuckerman, Why Do So Few Americans Have Advance Directives?, Wealth Management, April 18, 2016.

Special thanks to Jim Hillhouse for bringing this article to my attention.

April 21, 2016 in Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, April 19, 2016

What Happens When The Patient And Doctor Diverge About Treatment Options?

MedicalDoctors and patients are generally on the same page when it comes to treatment options and that includes when end of life choices are to be made. The idea that there is a point where life is no longer worth living under certain circumstances has helped to drive more and more people into requesting that extraordinary measures not be taken to prevent death. More than %80 of people over the age of 80 chose that path in order to avoid the often painful extreme proceedures that are required to save them. But what happens when a person wants every available measure used to prolong their life even though the doctor disagrees? The answer is to have honest and open communication between doctor and patient. Sometimes there is a misunderstanding about what DNR means and other times there is a specific event that the person wants to hold onto lie for and then will change their mind. In any event, frank talks are the best way to fully explain how to approach end of life care in way that allows the patient to understand what is at stake and make their choice based on all possible information.

See Ravi Parikh, When a doctor and patient disagree about care at the end of life, The Washington Post, April 18, 2016.

Special thanks to Lewis Saret for bringing this article to my attention.

April 19, 2016 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, April 12, 2016

The Difficulty Involved With Getting Funeral Pricing Information

Funeral pricingAccording to a survey conducted by two consumer groups it is difficult for people to obtain pricing information from funeral homes.  “The Funeral Consumers Alliance (FCA) and the Consumer Federation of America (CFA) teamed up to survey 150 funeral homes from different regions of the United States.”  The research shows that the prices between different funeral homes vary widely and that funeral homes don’t make it easy for consumers to get the information needed to compare prices.  Only about a quarter of the funeral homes surveyed provided pricing information on their websites.  About sixteen percent of the funeral homes failed to provide pricing information on their websites and they also didn’t disclose their prices in response to an email or phone call.  These consumer groups are requesting that the Federal Trade Commission (FTC) update its Funeral Rule.

See Getting Funeral Pricing Information Is Difficult, Survey Shows, Elder Law Answers, April 12, 2016.

April 12, 2016 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Thursday, March 17, 2016

Some Details On California's Right To Die Legislation

CaliforniaBeginning June 9, 2016, California's new right to die law will take effect which will make it the largest state to adopt legislation of that type. As with all new laws, there are still many questions about how it will work and who is eligible. First, anyone seeking to exercise their right to die must be aged 18 or older, have a terminal illness that will reasonable produce death within 6 months, be a California resident, and have the mental capacity to make health care decisions. In addition, two doctors, one an attending and the other consulting, must agree on the diagnosis and prognosis of the disease. In order to start the process three different request, two oral and a a written, must be made with 15 days elapsing between oral request. Finally, one last document must be signed before ingesting the drug which provides full notice to the patient of what is about to happen. Many other states, and countries for that matter, will be closely watching how the California system works in practice as they consider similar legislation.

See Lisa M. Kreiger & Jessica Calefati, California's new End of Life law to take effect June 9: Questions and answers, San Jose Mercury News, March 14, 2016.

March 17, 2016 in Death Event Planning, New Legislation | Permalink | Comments (0)

Friday, March 11, 2016

Considerations To Keep In Mind For Planning A Funeral For Singles

FuneralFuneral planning is usually left until after death, despite the fact many intend to prepare in advance, which means it is often family that makes the arrangements. But with the growth in singles who never marry or have children, planning becomes ever more important since there will be no one to manage the funeral in many cases. As a result, single individuals will need to work in advance with the first step being visiting a funeral home to discuss options. This will allow a person to gauge cost and determine if they want to pursue other paths such as cremation of donating their body to science. In addition, close friends can be brought along to help with the planning process and serve as a trusted assistant who will see that someone's last wishes are carried out. As the lifetime single population grows, the issue of preparing for death will increase in importance but a little advance planning can calm the mind and ensure that a person's earthly remains find their appropriate final resting place.

See Holly J. Lawrence, Single People Worry: Who’ll Be There For Us?, Next Avenue, March 10, 2016.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

March 11, 2016 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, March 8, 2016

Living Will Concept Emerging In Japan

Japan SealJapan has one of the fastest growing populations of elderly retirees in the world with the number only to increase in the coming years. As a result, the concept of a living will has begun to appeal to many in the country since it will direct end of life care and prevent futile measures to preserve life. However, this type of document is new to the country and currently has no legal sanction which means that there is no requirement to follow the wishes of the will's creator. In addition, many families face cultural pressure to prolong their loved one's life as long as possible in order to avoid accusations of being uncaring and not doing all in their power to preserve the life of the relative. Some discussions have occurred among the political leadership to give legal force to end of life directives, such as living wills, but with an election approaching the subject will likely be pushed back in time due to the controversial nature of the concept. But whatever happens legislatively, the people of Japan will likely to continue to take the issue into their own hands and create directives regardless.

See Linda Sieg, 'Living wills' spur debate on right to die with dignity in Japan, Japan Today, March 8, 2016.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

March 8, 2016 in Death Event Planning, Elder Law | Permalink | Comments (0)

Friday, February 19, 2016

The Problems Faced By Caregivers Caring For Aging Loved Ones And Children

Nursing HomeThose born astride Generation X and Millennials have become known as the sandwich generation due to the dilemma many of that age group face as they face the prospect of caring for aging family while also raising children. This trend is in no small part attributable the fact more people opt to have children later in life which puts their own parents in their 70's and requiring care rather than providing assistance helping with grandchildren. But many problems can arise with this dual responsibility so it must remain a priority for any caregiver to split their time between children and elderly family in a way that allows a balance to be maintained. In addition, preparations can be made years before when parents make sure they have some savings to offset cost for their  children as well as leaving all necessary estate documents, such as a will or health care directive, in an easy to find area for when they will be needed. Due to the record number of Baby Boomers reaching old age this dilemma will become common for many so planning ahead is the best way to prepare for the possibility.

See Allison Klein, How to cope with caring for baby boomer parents while raising small children, The Washington Post, February 17, 2016.

Special thanks to Naomi Cahn for bringing this article to my attention.

February 19, 2016 in Death Event Planning, Elder Law | Permalink | Comments (0)