I have written about funeral and burial instructions on a few occasions in the past, but rarely have I discussed the subject in much detail. Maybe I have been reluctant to get into it in detail because of the sensitivity of subject. It is important, however, so here goes.
There isn’t as much law about funeral and burial instructions 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 statute also says that the written statement may, but need not, be part of the person’s will.
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 written 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 human remains 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 the instructions in a written statement unless the person made the financial arrangements necessary to carry out his or her wishes as expressed in the statement. Finally, the statute 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 is not strictly necessary. If you want to provide instructions in a manner that qualifies as a written statement under the statute discussed above, 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 the person(s) who are going to be in a position to see to it that your instructions are honored. 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.
As for funeral instructions, I suggest the same approach: put the instructions either in your will or in an instruction letter to your closest relative(s) and/or the individual nominated in your will to serve as the personal representative of your estate. I don’t think there’s any way to guarantee that your funeral instructions will be carried out, so you may want to consider buying a pre-paid funeral plan if you have specific wishes in that regard.
While I’m on the subject of funerals, I’ll tell you about another Arizona statute I found when I was looking at the ones discussed above. This statute is titled: “Unlawful funeral or burial protest activities.” The statute says this:
- 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. That’s the group that became notorious for picketing at funerals. Actually, the less said about them, the better.
If you need more information on funeral and burial planning, the Arizona State Board of Funeral Directors and Embalmers has an informative brochure on the subject. You can download it by going to their web site at https://funeralboard.az.gov/consumer-information and clicking on the “Consumer Guide” link.
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: nhannah@dmyl.com or 520/ 322-5000
This communication is designed to bring legal developments of interest to the attention of our clients and others. It should not be relied upon as a substitute for specific legal advice in a particular matter. For further information on any of the subjects discussed, or for legal advice in connection with any particular matter, please contact us.
