Estate Planning Law Report: MAY 2015
A Sensitive, But Important, Subject

I have in the past touched on the subject of burial instructions, but probably not in as much detail as I should have. Maybe that’s because it’s a sensitive subject.

There isn’t as much law on the subject as you might expect. There is an Arizona statute that says a legally competent adult may prepare a written statement directing the cremation or other lawful disposition of his or her own remains. The statement may, but need not, be part of the person’s will.

NB Hannah

Nathan B. Hannah, attorney

The statute goes on to say that to create such a statement, the person should sign and date the statement and the statement should be notarized or witnessed in writing by at least one adult. The notary or witness should affirm that he or she was present when the person signed and dated the statement and that the person appeared to be of sound mind and free from duress at the time of execution of the statement.

A statement that is prepared and signed according to the statute authorizes a crematory, cemetery or funeral establishment to carry out the wishes of the person who signed the statement. It is not necessary for a crematory, cemetery or funeral establishment to obtain the consent or concurrence of any other person when it cremates or otherwise provides for the lawful disposition of a dead human body in accordance with instructions contained in a statement that meets the requirements of the statute.

The statute also says that the crematory, cemetery or funeral establishment doesn’t have to carry out your instructions unless you made the financial arrangements necessary to carry out your wishes as expressed in the statement. Finally, it says that a crematory, cemetery or funeral establishment that cremates or otherwise provides for the lawful disposition of a dead human body in good faith relying on an apparently genuine statement executed according to the statute is immune from criminal and civil liability and is not subject to professional discipline. The decision of a crematory, cemetery or funeral establishment to cremate or otherwise provide for the lawful disposition of a dead human body in reliance on the statement is presumed to be made in good faith.

I have always thought that a separate witnessed or notarized statement isn’t really necessary. If you want to be formal about it, the instructions can be included in your will. Another, less formal, way to do it is to simply write your instructions in a letter to your closest family member. I think that’s just as effective as a formal statement because there’s another statute that says if the person who has the duty to see to the disposition of a decedent’s remains is aware of the decedent’s wishes regarding the disposition of his remains, that person shall comply with those wishes if the wishes are reasonable and do not impose an economic or emotional hardship. The list of who has that duty starts with your spouse, goes through your closest relatives, and ends with any other person who has the authority to dispose of your remains, which would include the personal representative of your estate.

Now to lighten the mood a bit, I’ll tell you about another statute I found when I was looking at the ones discussed above. This statute is titled: “Unlawful funeral or burial protest activities,” and it says:

A person shall not picket or engage in other protest activities, and an association or corporation shall not cause picketing or other protest activities to occur, within three hundred feet of the property line of any residence, cemetery, funeral home, church, synagogue or other establishment during or within one hour before or one hour after the conducting of a funeral or burial service at that place.

A person who violates this section is guilty of a class 1 misdemeanor.

For the purposes of this section, “other protest activities” means any action that is disruptive or that is undertaken to disrupt or disturb a funeral or burial service.

I think you could call that the Westboro Baptist Church statute.

One more bit of information: the Arizona Board of Funeral Directors and Embalmers has an informative brochure about funeral and burial planning that you can download by going to their web site at and clicking on the “Consumer Guide” link.


Should Savings Grow Tax-Free Regardless of the Purpose?

Should the income earned on savings be exempt from income tax regardless of the purpose of the savings? Under the federal tax code, there are at least three kinds of savings accounts in which the earnings are given at least some exemption from income tax: retirement (IRAs), health savings (HSAs), and education (Coverdell ESAs and 529 plans). Each type of tax-advantaged savings vehicle has developed more or less separately with their own, sometimes very complex, rules.

Are there other things taxpayers should be saving for that merit a tax advantage? What about saving for a down payment on a first house? Or for long- term care expenses for elderly family members?

And if we aren’t saving enough in general, as we are repeatedly told, then why shouldn’t there be savings vehicles in which the income earned on the savings is not taxed, regardless of the ultimate use of the savings? I’m not talking about some new, outrageous idea, or something I thought up myself. Such savings vehicles already exist in Canada (called tax-free savings accounts, or TFSAs) and Britain (individual savings accounts or ISAs).

Creation of a universal tax-advantaged savings account could be a great way to achieve tax simplification, in addition to encouraging savings. Even if tax-free savings accounts should exist only for the currently allowed purposes of retirement, health care, and education, and maybe one or two others, couldn’t the treatment of them be standardized, instead of having separate, very complex, rules for each?


may quote of the month

Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions.  He is also a noted blogger, and you can find more of his articles on his private blog

Contact Attorney Hannah:  or  520/ 322-5000