Considering the End: Planning for Your Demise in Addition to Estate Planning (Part 1)

Ervin Cohen & Jessup LLP

In 2007, Harris Interactive® for Martindale-Hubbell® published a large survey which concluded that more than half of all Americans dying do not have a Will or any estate planning at all. That percentage goes even higher for those dying without having made any substantial efforts to ease the burden left for their survivors, in connection with burial, memorial, personal accounts and other significant decisions which, if left without instruction, can cause a family division which is certainly not the legacy we desire when our loved ones are mourning our passing. Some of us will simply avoid contemplating our own mortality and ascribe the task to our surviving spouse, but what if we ourselves unexpectedly turn out to be the survivor? Or what if our surviving spouse isn’t healthy or strong enough to make these decisions and is, instead, at the mercy of strong-willed children and others wanting to “have their say”?

This blog article will be delivered in two parts, and this first part deals with the immediate decisions about the disposition of our remains and our memorial. The second part will deal with matters subsequent to these initial considerations such as leaving our survivors a roadmap or memorandum of our accounts and account managers, professional advisors, website passwords, credit cards, etc., as well as instructions regarding our tangible personal effects.

Perhaps as part of your New Year’s resolutions, you should investigate these areas and give time and effort to setting down your desires in writing.

1.         Disposition of Remains.  

a.         Anatomical Gifts. Regardless of the final resting place of your remains, you should provide some written instruction to your family as to your desire to be an organ donor or not to be one. In California and several other states, the statutory Advance Health Care Directive provides places to make these instructions. Remember that it is not just vital organs which are worthy of transplantation that can be harvested from a human body; there are bone, artery/vein, skin, cornea and other banks, which will preserve these body parts for further use, whether in transplantation or research. Leaving this decision to your survivors may create arguments and division, and even if you merely designate the person to make such decision, your written expression of your own directions in this regard is much more persuasive and less open for debate.

b.         Burial and Cremation. Some religions have strict burial rituals and timing, but some folks may wish to bypass such restrictions notwithstanding their religious affiliations, and they need to say so, in writing. For example, traditional Judaism calls for burial in the ground very soon after death. In fact, most Jewish cemeteries have no connection to a crematorium, and many secular mortuaries offering cremation of remains require a written instruction from the deceased, or an Advance Health Care Directive expressly dealing with cremation of remains, in order to take on such a task.

In addition, some of us have very specific desires for burial, such as what should go into the casket with us, what clothing we should be in, and many other seemingly very personal wishes about this process, all of which may be missed without written instructions. But, most important, even if you have no unusual wishes, writing down any particulars will spare your family from some, if not all, of the division caused by differing memories of what their dearly departed loved one expressed to each of them during his or her lifetime.

Of course, many cemeteries and burial facilities provide for pre-paid, pre-arranged plans, and while one might not be ready to spend current funds to set up such plans (which, incidentally, make the process of disposition of remains and memorial service much less difficult for our survivors), adding written instructions as to location and programming for these functions will leave a positive lasting memory for our family.

2.         Memorial Service.  

As we get older, we attend more and more memorial services for our friends and family, and many of us get a fairly good idea as to how we’d like our survivors to bid us farewell. In my case, my mother, who didn’t want a traditional memorial service, told me to invite her closest friends to her favorite restaurant for a feast, and we did exactly that. During our meal, all of us shared many wonderful stories about my mother, and we all enjoyed the experience so much that the restaurant staff had to ask us to leave when the restaurant was closing. Years later, upon my chance meeting with some of the attendees, I’ve heard their praise for the wonderful memorial dinner that we shared.

Some of us may want parties while others may want no memorial at all, and the only limitation upon your desires in this area is our own imagination and the economics of our desires. Unfortunately, without written instructions from us, our families will be left to their own consensus-building ability in order to arrive at accepted plans. As you might imagine, the creativity of many funeral providers has no bounds whatsoever, especially with respect to the disposition of cremated remains. There are services which will turn one’s pulverized remains into a biodegradable helium balloon which will rise to 30,000 feet before bursting, companies who will compress your remains into a hockey puck or a skeet-shooting target for those enthusiasts and even firms which will place your remains into an ocean reef as a permanent marine habitat, all of which services also provide the fanfare ceremony for such programs.

While the decision-making may seem daunting, it is nevertheless yours to make, and written instructions will make things easier for your family.

3.         Obituary and Other Notices.

Some cemeteries will publish a one-line obituary as part of burial services, but normally, if a public notice of our demise is desired, it is often the family who provides it and pays for it. Those of us with significant pride in authorship may want to provide an outline, or even a finished work, for our own obituary, because different members of our family may have differing ideas as to what should or should not be said. I’ve seen squabbles about whether to include the names of surviving children and/or grandchildren, what accomplishments of the deceased to describe, and even the length of the obituary (for which most newspapers charge by the line or the word). If you’re unsure as to whether you even want an obituary, you should consider that they are often published online these days (along with the rest of the newspaper edition in which they appeared), meaning that anyone who searches for you can find the obituary’s brief summary of your life (in addition to the notice of when you passed on), even years after your date of death. Of course, if you’re organized like my mother was, you might also consider leaving your loved ones with contact information for all those you wish to receive personal notice of your death, particularly those living away from your neighborhood. Receiving a phone call from the child of your lifetime friend is received with so much more appreciation than an e-mail or a written regret notice months after death.

4.         Who Gets the Instructions

I had a client who placed information about her pre-paid, pre-arranged burial instructions in her safe deposit box which, unfortunately, wasn’t opened by her surviving sons until well after she was buried at a cemetery different from the one she had selected (she never told her sons about her arrangements). It is, therefore, obviously imperative that any written instructions regarding our remains and memorial desires be given, hopefully in advance, to our family members or friends who will be taking care of these matters or, in the alternative, put in an envelope and given to such persons which reads on the outside: “To be opened immediately upon my death”. Any written instructions should be signed and dated by you, so as to authenticate that they are indeed your wishes.

All of these considerations may seem excessive and uncomfortable to contemplate. But those among us who have seen these tasks fully planned in advance, versus those done “on the fly” without any instructions from the deceased, will sing in unison the praise of a well-planned burial and memorial.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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