Saturday, April 14, 2012

Who has the right to decide the disposition of remains?

You may assume that statements made in a person's will would control whether his body is to be buried or cremated. You may assume that the person that the decedent nominated as personal representative has the right to make that decision. Both assumptions would be wrong.

This decision is controlled under section 3206 of the Estates and Protected Individuals Code. The legislature recognized that providing for a personal representative to make a decision would be too cumbersome in most cases, since the disposition decision has to be made very soon, but the process of naming a personal representative can take at least a couple of weeks, and sometimes many months. So, instead, section 3206 provides for a priority among family members to make this decision. (If the decedent was a member of the armed services, other provisions will now apply, as our last posting described.)

In order of priority, borrowing from section 2103 (the section which identifies which relatives will receive property when a person dies intestate - without leaving a will), section 3206 gives the decision-making authority to family members in the following order:
  • the surviving spouse  
  • the decedent's children 
  • the decedent's grandchildren 
  • his parents 
  • his siblings 
  • his nieces and nephews 
  • his nominated personal representative 
  • his guardian, if any 
  • the county public administrator 
At each level, if the person(s) cannot be located or chooses not to make the decision, the authority passes to the next priority level.

The section provides that, in the event two or more people having the same priority cannot agree, the decision of the majority controls. If a majority cannot be found, as would be the case if the decedent left two children who did not agree, a petition may be filed with the probate court under section 3207 to have the court make the determination, after a hearing. Section 3207 identifies some criteria to guide the court, including the important question of whether the person bringing the petition is "ready, willing, and able" to pay the costs of the intended disposition.

Any person who has created a will or a trust should be aware that neither the funeral home nor the court will consider the decedent's wishes as expressed in the document, if there are relatives with the established priority to make the decision. If a particular means of disposal is important to you, be sure to let your closest family members know your wishes.

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