Legal Notes—Funeral Arrangements: How Do You Give Directions? Who Has Authority?

If you are someone who likes to be prepared and to have your affairs in order, you may have an estate plan in place to address management of your medical needs and finances in case of incapacity and the testamentary disposition of your assets. In contemplating end-of-life issues, you may also have planned for your funeral—whether it involves a traditional full service with embalming and viewing, followed by a ceremony and burial at the gravesite, or direct burial, a full-service cremation, or direct cremation. 

How are your instructions then carried out? 

If you have a pre-need funeral services contract with a licensed funeral establishment, specific instructions regarding the nature of your funeral services will be carried out by the funeral home. If no such contract is in effect at the time of your death, or the contractual terms are not specific enough, then under Massachusetts law the funeral home will effectuate your wishes expressed in writing and signed by you in the presence of a witness. 

Without a pre-need funeral services contract or any written instructions, a funeral home can take directions from your surviving kin or legal representative in the following order of priority (if more than one person exists in a class below, directions from a majority of the members prevail):

1. Surviving spouse;
2. Surviving adult child;  
3. Surviving parent;
4. Surviving sibling;  
5. Legal guardian at the time of your death, if any;
6. Any other person legally authorized or obligated to dispose of the remains—i.e., personal representative (aka “executor”) appointed by the probate court, or the agent under your health care proxy. 

Consider the priority order of people who will orchestrate your funeral. Are you okay with the default answer? It can be problematic for aging “solos”—who will not have a surviving spouse, child, parent, or sibling. Or you may not want your next of kin—a sibling who rarely spoke to you—to control your memorial service. Note that a personal representative cannot direct your funeral arrangements in a timely manner, because it can take several weeks for a probate court to issue an appointment from the date of filing the petition. In many circumstances, probate is not even necessary to settle an estate.

If you are certain about the funeral arrangements you want, purchasing a pre-need funeral services contract can ease the burden on your survivors. If you need flexibility or you are not ready to make a contract, financially or emotionally, simple written instructions can suffice. They may be in your will, health care proxy, or other writing.  

Consider your wishes, memorialize them. Take control of your final act.