A man died without a Will. He died unmarried, with two children, one 19 and the other 17. However, he and his children had been estranged for least ten years. His siblings and parents contacted me to ask who had the legal right to make funeral arrangements for him. Is there a law that outlines who can make funeral arrangements in Texas if someone dies without a Will?
People With the Right to Make Funeral Arrangements
Section 711.002 of the Texas Health and Safety Code states that the following people, in the priority listed, have a right to make funeral arrangements in Texas:
- A person designated in a written document signed by the decedent;
- a decedent’s surviving spouse;
- a decedent’s surviving adult children
- any of the decedent’s surviving adult siblings
- one or more duly qualified executors or administrators or the decedent’s estate; or
- any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.
Texas requires the person with the right to make funeral arrangements to make final arrangements or appoint someone to make final arrangements:
- within 6th day after the person received notice of the decedent’s death; or
- the 10th day after the date the decedent died.
Otherwise, there is a presumption that he or she is unable or unwilling to make funeral arrangements. In that case, the person’s rights will be terminated. After the the right to control the disposition passes to the next person in the line of priority.
If the person who makes funeral arrangements is not an appointed executor or administrator, he or she is liable for the reasonable funeral cost and can be reimbursed for that cost from the decedent’s estate.
How to Control Who Makes Final Arrangements
In Texas, if you want to decide who makes your funeral arrangements, you an do so in a Will. You can also use a separate document called an Appointment of Agent to Dispose of Remains.
An Appointment of Agent to Dispose of Remains is a legally binding document authorizing your agent to make your burial or cremation plans.
Appointing an agent is especially important if you want someone who would not otherwise have priority, such as a friend, to make these arrangements for you.
Cremation and Other Choices
More and more of my clients choose cremation, consistent with national trends. Cremation brings its own decisions: whether remains will be kept, buried, or scattered, and by whom. People have chosen everything from scattering at sea to memorial spaceflights, as the creator of Star Trek did. Whatever you want, the person with the legal right to control your remains is the one who will decide, so it is important to name that person and tell him or her your wishes.
Green Burial
Green burial has also grown in popularity. A natural burial places the body in the ground without embalming, in a biodegradable casket or shroud, often with a simple marker or none. Texas has dedicated green burial grounds, such as Eloise Woods near Austin, and North Carolina has several. Other methods, such as human composting, are legal in some states but not others, so check current law before making plans that depend on them.
Documenting Your Wishes
- Sign an Appointment of Agent to Control Disposition of Remains naming the person who should carry out your wishes, especially if that person would not otherwise have priority, such as a friend or partner
- Write down your preferences for burial, cremation, or green burial, including any preferred provider
- Discuss your wishes with your family so the decision does not fall to them in a moment of grief
Schedule a free introductory conference to add these documents to your estate plan.
