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How to Leave Instructions for Your Final Resting Place

By William D. Block of Block Legal Services, LLC posted in Wills on Wednesday, November 16, 2016.

If you have thoughts about the final disposition of your remains, it's important to put those thoughts in writing. But are you putting your wishes down in the right place?

In my other posts about the limitations of wills, we've looked at some of the legal limitations of what a Last Will and Testament can do. With my last two posts in the series, I'd like to look at some of the practical limitations.

In many areas of the law, there is a difference between how things technically should go according to the law and how things actually go in the real world. Probate is no different. If every legal situation was an essay question within the sterile confines of a law school exam, it would be relatively easy to see how the mechanics of fact and law interplay to produce a clean, clear outcome.

Where the Rubber Hits the Road

Once you apply a liberal dose of reality to a situation, though, things become a little more complicated. Funeral instructions are an excellent example. If you put instructions in your will about your funeral arrangements, whether you want to be cremated, and what you want done with your last remains, legally speaking those instructions need to be followed.

Practically speaking, though, your loved ones won't be able to follow instructions that they don't know about. It is quite common for a will to be read for the first time weeks or even months after a person passes away, especially if the death is sudden or unexpected. The time right after a loved one passes can often be very busy and chaotic. A will is often thought of as the document that says who is supposed to get what, and the distribution of property might feel like a petty or even greedy topic to look into before the person is even buried. Many times, no one even knows where the will is.

In the extreme, this disconnect in communication might mean that plans are made twice. I know of one situation where a person had done very good planning, to the point of even buying a burial lot and headstone. Unfortunately, those plans weren't communicated to the person's children. After they died, the children bought a second plot and headstone at a completely different cemetery. Not only were the wishes of the deceased not honored, but the children had to go through the hassle (and the expense!) of making second arrangements.

What's the Better Option?

If you would like to leave written instructions, the best place to do so is probably in healthcare documents such as a Healthcare Power of Attorney or a Living Will. (Not sure what the difference is between a Last Will and a Living Will? Don't worry! I explain it all here.)

Healthcare documents are much more likely to be looked at while a person is still living. Ideally, those documents should be discussed with the people who are going to be making healthcare decisions for you. Putting funeral arrangements in with the rest of your instructions for your care creates an easy way to bring up the topic.

Making plans ahead of time for your final resting place is a great idea. Like all good estate planning, it saves your loved ones from having to do that work during a period of grief. It also reduces the number of decisions that need to be made, which can help keep the peace once you're gone. If you do make plans like this, though, make sure that you've talked about those plans with the people who will be in charge of your estate. Any paperwork involved with those plans (like copies of a burial trust, receipts for plots or headstones, or the burial insurance policy) should be kept with your other estate planning documents.

Lastly, if you want someone to follow instructions that you've written down, make sure they know where to find them!