Estate planning is one way to prepare yourself and your family for what happens after your death. Planning ahead gives you the opportunity to specify who will inherit your property after your death while helping you to reduce the taxes your estate will have to pay. Avoiding family heirloom disputes can also be accomplished with some planning. But one thing that some people neglect to consider as part of their estate planning is what they want to be done with their remains. In California, as in most other states, there are laws that govern this issue to a degree. Let our elder law attorneys explain some of the considerations that should be an important part of your estate planning.
California’s laws regarding the disposition of a person’s remains
California has enacted statutory provisions that govern the disposition of an individual’s remains, which includes giving you the right to control how your remains will be disposed of. The key is that you must put your wishes in writing in order to utilize your right to control. Under the law in California, a decedent’s preferences as to the disposition of his or her body are controlling if they are clearly expressed in writing. An oral expression is not usually sufficient.
Rights provided under the California Health and Safety Code
An individual can provide written instructions, prior to death, regarding the disposition of his or her remains, including specifying the funeral services you want to be provided. Those written instructions will be controlling as long as they are clear and complete and arrangements have been made to cover the expenses related to those arrangements. The financial arrangement must be binding or guaranteed. The arrangements will be carried out to the extent that the financial arrangements cover the related costs. A third-party who also has the right to control the disposition of the person’s remains can assume the remaining costs.
There are a variety of methods for expressing your wishes
As our elder law attorneys can tell you, there is no requisite format for the written expression of your wishes for the disposition of your remains. In fact, there are several choices that you can consider, including a testamentary expression (last will and testament), advance health care directives, and contracts with third-parties.
Expressing your wishes in your will
You may include provisions in your will regarding your wishes as to the disposition of your remains upon your death. Those provisions must be carried out regardless of whether there are questions regarding the validity of any other portions of the will. These provisions must also be carried out regardless of when the will is actually admitted to probate. One of the benefits of this method is that the probate court can be used to adjudicate any disputes regarding the disposition of your remains. One disadvantage, though, is that there is a chance that the will is not examined before the disposition of the remains.
Creating an advance health care directive
California has a statutory form that is used for creating an advance health care directive. This form includes specific language that authorizes an agent to direct the disposition of the individual’s remains upon their death. In this case, the authorization provided to the agent allows him or her to make decisions regarding the disposition and those decisions take precedence over the desires of any surviving family members.
Remember that when creating an advance health care directive, unless you include limitations, the agent you choose will have full authority to dispose of your remains as they see fit, including authorizing an autopsy and donating organs. If you want to include certain limitations or have questions about what types of limitations you should consider, speak to our elder law attorneys for advice.
Contracts with third-parties
Another option to consider is executing a binding agreement with a funeral home or memorial society. These organizations have forms for potential customers to use in expressing their wishes with regard to the disposition of their remains.
Other written expressions of your wishes
While there may be other options for expressing your wishes with regard to the disposition of your remains, those other methods may be more subject to challenges on the various grounds upon which other estate planning documents may be challenged. Those may include challenges based on lack of capacity, undue influence, mistake, and lack of intent. If you are facing these challenges on behalf of a loved one, ask our elder law attorneys for assistance.
What happens if there are no written instructions
In situations where the decedent has not left any written instructions as to their remains, the duty to decide on and arrange for the disposition, as well as payment of the expenses, will fall on specific individuals as identified in various estate planning tools. First, the person who is named agent pursuant to a power of attorney for health care would have the power to determine disposition. If there is no one serving in that capacity, then the decedents will be next in line to make the decision, meaning the surviving spouse, adult children, and parents.
Download our FREE estate planning worksheet today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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