Should Funeral Planning Be Part of Your Estate Planning Too?
By Joe Busnengo, Attorney At Law
“He wanted to be cremated and have his ashes scattered. He told me as much.”
“No, he didn’t! He wanted a traditional burial in his hometown where he grew up.”
“Who told you that? He hasn’t been back there in 50 years. He needs to be buried in the cemetery here in town with the rest of his family.”
Whenever we’re going through the process of estate planning, we often think about who is going to raise the children if you happen to pass before they reach an adult age or how your assets are going to be properly distributed. What people rarely think about during this process is about is the funeral itself, the expense involved with it and deceased’s true wishes for burial or cremation.
Let’s tackle these issues head on so that none of them fall through the cracks in your thought process.
The Expense Of The Funeral
There are plenty of expensive decisions associated with a funeral and how that's going to be paid for. You don’t want to leave your family with a large expense so ask yourself – can that be pre-planned or pre-paid for? Do you have a burial policy to cover expenses?
Some people will actually pre-arrange their funerals, going into an arrangement with a funeral home and pay in advance for a casket, plot and the actual funeral. As a result, all the next of kin needs to do is call the funeral home upon the person’s passing to set the next steps in motion. The family will not likely incur any expenses.
What I frequently tell my clients is that it's so important that they involve everyone in their final decisions on funeral expenses who needs to know. This area does not necessarily need to be specifically addressed in the estate planning documents.
Sorting Out The Funeral Arrangements
In contrast, when you have potential disagreements about arrangements for the funeral and burial without any documentation of any kind, it can lead to a lot of problems.
What are your wishes regarding how your remains are disposed of? This is a conversation that you need to sit down and have with as many important parties as necessary. To be perfectly clear, if you and your spouse disagree about who should be buried where, that’s not something that an estate planning attorney can “fix” for you. You must have that conversation and make those particular decisions on your own. We can help you put that in writing if needed but the final decision lies with you.
However, once you’re certain about your wishes for burial, where’s the best place to express your wishes in documentation? Many people say, “I’d like to put it in my will that I will be buried at ____ Cemetery,” but is a will really the most ideal place for such wishes to be shared? No and here’s why: All too often, the will doesn't even get looked at by the rest of the family until after the funeral. Imagine that your children have just returned from the crematorium only to discover – oops – you wanted to be buried in a traditional manner.
That’s not something you can undo but the trauma is easily avoidable. Instead of a will, one of the avenues I typically pursue when drafting a will is to always recommend powers of attorney as well. Powers of attorney only apply until the event of one’s death at which point they are no longer valid. The only exception to that is the power of attorney for healthcare, which deals with several issues after you pass. For example, a power of attorney for healthcare allows the agent to make decisions regarding organ donation, autopsies and disposition of remains.
There is no dispute that one of the potential people who get to make the decision on these matters is the agent under the power of attorney for healthcare. So make sure you have a conversation with your agent to help ensure that they know exactly what you want to happen. This way, your wishes can be included as an attachment to the power of attorney, giving the agent real authority to act upon your wishes.
A Word About Funeral-Related Debt
You may not realize this, but when you pass, your debts have to be paid before your assets go to your beneficiaries or heirs – and there are several different classes of debt that need to be taken care of before distributions can happen. We speak about this in greater detail within another blog post (“Debt Dies With You? No.”).
Funeral expenses comprise part of the very first class of debt that should be paid in the state of Illinois. So even if you owe thousands of dollars in taxes and tens of thousands of dollars in credit card debt, your funeral expenses must be paid first.
At Miles & Gurney, LLC, we’ll go through the paperwork pertaining to your power of attorney, paragraph by paragraph, to make sure you understand exactly what you're signing. One of the elements we ensure we point out is what the agent under power of attorney has the authority to do, such as whether or not they can authorize an autopsy and what type of control they have over the disposition of your remains.
It’s easy to forget about the details of a funeral or think of it as something you’ll eventually get to several years from now, but let’s remember that not everything in life goes exactly according to plan. Addressing the potential expenses, arrangements and debts that could arise is a smart move and there’s no better time to think about all of it than right now.
Consider your true wishes and how you’ll communicate them to your family, then have our estate planning attorneys put the pieces in place that reflect just what you want. Talk with Miles & Gurney today at 312.929.0974.
Joe Busnengo practices in the areas of probate, family law, and estate planning. While a student at Northwestern University School of Law, he gained experience with family law as an extern at Chicago Volunteer Legal Services and with probate and estate planning as a clerk at Prather Ebner LLP. Since graduating and being admitted to the bar in 2013, he has represented clients in adoption, divorce, and estate planning matters through Chicago Volunteer Legal Services and Wills for Heroes. He is currently a member of the Chicago and Illinois State Bar Associations and serves as co-chair of the CBA YLS Public Outreach—Wills for Heroes subcommittee.