Funeral and end-of-life wishes

What is actually worth recording

Detailed instructions are less useful than their detail implies, because the family is not looking for a script — it is looking for permission. Recording the four or five decisions that would otherwise be argued about is worth more than a page of preferences.

• Burial or cremation. This is the decision families most often disagree about, and the one a written wish most reliably settles.
• Whether there should be a service, and roughly what kind — religious, secular, small, public, or none at all.
• Any specific requirement of faith or culture, particularly anything time-sensitive, since some traditions require burial within a day.
• Whether they have already paid for anything, and with whom. An unclaimed prepaid plan is a common and expensive loss.
• Organ and tissue donation, which is a separate decision with its own registry and its own legal effect.
• Where the remains should end up, which matters more for cremation than for burial — ashes with no instruction sit in a cupboard for years.
• How much they would want spent. Giving the family explicit permission to spend less is one of the kindest things a written wish can do.

Do not put funeral wishes only in the will. The will is frequently not read until after the funeral, and in most states it becomes a public record when it is. Tell people, and keep the note somewhere obvious.

The price rights every family has

A federal regulation applies to every funeral provider in the country. It exists because funeral buying happens at the worst possible moment, and it creates rights that are simple to use and almost never used.

You can ask for prices by telephone

A provider must tell anyone who asks by telephone any accurate information from its price lists, plus anything else readily available that reasonably answers the question. You do not have to visit, and you do not have to give your name.^{Source 1}

You get a written price list, to keep

As soon as arrangements are discussed in person, the provider must hand over a printed general price list for you to take away — whether the conversation happens at the funeral home or somewhere else. A separate casket price list must be offered before caskets are shown. That is what makes comparing two providers possible at all.^{Source 1}

You choose only what you want

A provider may not make one purchase a condition of another, and may not charge a fee as a condition of providing goods or services beyond the permitted basic-services fee and what you actually selected. The general price list is required to say so in terms: you may choose only the items you desire, and anything you must buy has to be explained in writing.^{Source 2}

A casket is not required for cremation

It is an unfair or deceptive practice for a funeral provider or a crematory to require a casket for direct cremation, and a provider offering direct cremation must make an alternative container available. This is the single largest avoidable cost in the whole transaction.^{Source 2}

Embalming is not required by law except in particular cases, and a provider asking permission to embalm before showing you prices has to say so. If someone implies it is legally required, that is your signal to slow the conversation down.^{Source 3}

Comparing prices without shopping while grieving

The reason families overpay is not that they are careless. It is that they are buying, for the first time, an unfamiliar and emotionally loaded product, from someone who does this daily, within a day of a death. Everything below moves that decision to a calmer moment.

1. Telephone three providers and ask for the price of the specific thing you want — a direct cremation, or a burial with a viewing. You will hear a wide range, and the range is the finding.
2. Ask for the general price list by email in advance. Providers must give it in person; many will send it, and having it beforehand changes the conversation entirely.
3. Take somebody who is not immediate family to the arrangement meeting. Their only job is to ask what each line item is and whether it is required.
4. Decline anything you did not ask for, and ask for the reason in writing if you are told something is required.
5. Remember that a casket can be bought elsewhere. Providers must accept one you supply and may not charge a handling fee for doing so.

Doing this in advance — even one phone call, even years early — is the single highest-return thirty minutes in this whole world. It is also entirely undetectable to the person whose funeral it is, if that is a concern.

Prepaying: what it does and does not protect

Prepaid funeral plans are sold hard, and they are neither a scam nor the safe default they are presented as. The questions that decide whether one is a good idea are specific.

• Is the price guaranteed, or only the money deposited? A plan that fixes a sum without fixing the goods leaves the family paying the difference.
• What happens if the provider is sold, closes, or the family moves away? Portability varies enormously and is governed by state law.
• Where is the money held — in trust, in an insurance policy, or with the provider? This decides what happens if the business fails.
• Can it be canceled, and how much comes back?
• Does it affect eligibility for means-tested benefits? An irrevocable prepaid plan is treated differently from savings, which is sometimes the actual reason to buy one.
• Does anyone in the family know it exists? An unclaimed prepaid plan is money paid twice.

For many families, setting aside money in a payable-on-death account and writing down the wishes achieves the same protection with fewer traps. The exception is where the plan is being bought deliberately for benefits-eligibility reasons, which is a conversation for an elder law attorney rather than a salesperson.

What happens to the money is decided by state law rather than by the federal price rules, and the states Sahvelo has read protect different things: Arizona protects the fund, Florida protects the exit, and New York protects the ownership. That is the question to ask a salesperson, and the answer is not the same anywhere.

A contract bought to qualify for benefits is usually irrevocable, and irrevocable means what it says. In New York the buyer keeps the right to change funeral home at any time and gives up any right to repayment — theirs and their heirs'. That is the trade, and it should be made deliberately rather than discovered.^{Source 7}

Who actually decides

Who has the legal right to decide when wishes conflict is set by state statute, and the statutes disagree with each other about nearly every part of it. What each state publishes is a default: an order that applies when nothing has displaced it. It is not, on its own, the answer for a particular family, because the things that displace it are ordinary facts about a life — a separation that was never finalized, a health care document signed years ago, an order of protection, an arrest — and several of them are facts a grieving family may genuinely not know about each other on the day.

Read the order below with what displaces it, not on its own. In three of the four states a document signed long ago moves somebody past the spouse or the children, and in each state a different event removes a person from the list entirely. If there is a live dispute, this page is background: that needs a lawyer in that state today, and the funeral establishment may be entitled, or in New York effectively required, to stop while control is contested.

Two things sit beside the order and change what a person should do now. The first is what your own written document actually accomplishes in your state, which varies more than a signed document suggests — from Florida, where written directions outrank every living person, to Arizona, where they bind only somebody who already knew about them and only if they are not inconvenient. The second is what happens if somebody objects after arrangements have started, which is procedure rather than ranking and is worth knowing before it is needed.

What your own written wishes do

In Arizona, less than a signed document suggests. The duty to comply attaches only where the person who has the duty of burial is aware of the wishes — so a document nobody can find imposes nothing — and then only if the wishes are reasonable and do not impose an economic or emotional hardship. An instruction for something expensive or unusual is, in Arizona, a wish rather than an instruction. The practical consequence is that telling the person who will have the duty matters more than the wording does.^{Source: A.R.S. § 36-831.01 (Disposition of remains; duty to comply with decedent's wishes; exemption from liability) (opens in a new tab)•}

New York prints a form for it — an appointment of agent to control disposition of remains, signed and dated by both the person and the agent and properly witnessed, so it is an appointment somebody accepts rather than one made about them. New York also deals with the commoner case of directions left inside a will. Where there is no separate instrument, a designation or direction in a will is treated as reflecting the person's intent, and can be superseded by a later instrument or by a later act showing a specific intent to supersede it. The sentence that matters on the day is that actions taken reasonably and in good faith on such a direction are valid regardless of whether the will is later probated or declared invalid — because a funeral happens long before a will is admitted.^{Source: N.Y. Public Health Law § 4201 (Disposition of remains; responsibility therefor) (opens in a new tab)•}

The general lesson across the states read is that a document does more work when the people around it know it exists. Wherever a state offers a formal way to designate someone to control disposition, using it is worth the cost — and telling that person, and telling the family, is worth more than the document alone.

One last thing about the order itself. Being the executor is not what decides a funeral: Florida reaches the personal representative only where no family member is available at all, New York places a fiduciary of the estate eighth, and neither Arizona nor California gives the role a rung of its own. The two authorities are separate, and the funeral almost always happens before letters are granted anyway.

If someone objects after arrangements have begun

This is the question families ask at the worst possible moment, and it has a real answer that does not depend on knowing who has the better claim. The states Sahvelo has read on it handle a contested disposition in opposite ways, and knowing which kind of state you are in changes what to do first.

In New York, an objection is likely to stop things. Every dispute about the disposition of remains is resolved by a court, in a special proceeding under article 4 of the CPLR — the fast route rather than an ordinary lawsuit. And no person providing services may be held liable for refusing to provide them while control is contested, until they receive a court order or a notification signed by all parties. The funeral home is protected for stopping, not only for proceeding. So an objection communicated to the establishment is the thing that halts matters, and the two ways out are equal: everybody signs, or a judge decides.^{Source: N.Y. Public Health Law § 4201 (Disposition of remains; responsibility therefor) (opens in a new tab)•}

California instead puts a clock on the whole process and lets the business go to court itself. Where a person with the right to control does not act, or does not delegate it, within seven days — ten for a surviving spouse — the right passes to the next degree of kinship. The same happens where they cannot be found within those periods after reasonable inquiry, so an unreachable relative does not freeze the process, but a real attempt to reach them has to be made and the clock has to run. And where people with equal rights fail to agree within seven days, a funeral establishment or cemetery authority holding the remains — or any person with an equal right — may petition the superior court in the county where the person lived. The funeral home is not obliged to referee, and is not obliged to wait either.^{Source: Cal. Health & Safety Code § 7105 (Failure to act; inability to locate; failure to agree) (opens in a new tab)•}

If you intend to object, say so to the funeral establishment directly and in writing, and do it early. An objection that exists only inside the family changes nothing about what the establishment may lawfully do, and in several states the person arranging matters is acting on a representation that they know of no objection. Time also matters in both directions: California's deadlines transfer the right to decide, so waiting can move the question to somebody else entirely.