Include Funeral/Burial in Estate Plan An often overlooked part of the estate planning process is the consideration of funeral and burial instructions. Generally, it is difficult for an individual to consider or express his or her wishes as to the distribution of property upon death, let alone think about what type of funeral to have or where he or she is to be buried. For many, the thought is simply too morbid. However, when someone passes away, the decision on a funeral director, burial or cremation, place of burial, etc. need to be made immediately. The Last Will and Testament typically is not the best place for an individual to provide such direction. Many times the Will is not even discovered or looked for until after the funeral. Therefore, this in not the ideal location to identity your wishes with respect to funeral and burial decisions. In the event that such direction is not made known to relatives or other loved ones, the wishes would obviously be difficult to carry out. The greatest concern that would turn to the decision maker of the arrangements after death Effective October 12, 2006, Ohio Revised Code Sections 2108.70 through 2108.81 were enacted to provide statutory power to direct one own funeral arrangements in advance and in the absence of such direction, a clear statutory “priority” to determine which individuals hold the right to direct funeral and burial arrangements. Prior to the enactment of these sections, the “priority” as to the individual who had the right to determine funeral and burial arrangements was unclear. A typical problem where the priority might have a significant impact occurred when the decedent left a surviving spouse and children of a prior marriage. In such a case, the surviving spouse and children of the decedent may not agree as to how the funeral arrangements should be made, and where the decedent is to be buried. This problem is all too common given the high incidence of divorce and remarriage. Now, Ohio law provides that the decedent’s surviving spouse is given the highest priority in the decision-making process as to funeral and burial arrangements, with the children, parents and siblings following in the order of preference. So, when organizing your estate plan, please also consider your intentions and wishes with respect to funeral and burial arrangements. This is especially important with second marriages. Pre-need arrangements with reputable funeral directors eliminate the difficult decisions at a difficult time by your loved ones, and can further reduce the potential costs of these arrangements. For more information on funeral/burial arrangements or other issues on estate planning contact Attorney James B. Dietz atjdietz@fandrlaw.com or contact Attorney Christopher J. Schiavone atcschiavone@fandrlaw.com for more information.
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