what kind of attorney handles control of deceased remains

A power of attorney is no longer valid after death. The only person permitted to act on behalf of an estate following a death is the personal representative or executor appointed by the court. Assets need to be protected. Following the death of a loved one, there is often a period of chaos.

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Who can act on behalf of an estate following a death?

While a dispute over the disposition of a deceased person’s remains is typically a matter for the probate court, some states handle it differently. Consult a …

Who has the legal right to control the disposition of my remains?

The probate attorneys at Fair Share Lawyers put together a list of steps to take and things to know when a loved one dies. If you have questions about the management of your loved one’s estate or the probate process, call us anytime at (888) 694-1761 to get answers.

What happens to the remains of a deceased person in court?

May 08, 2020 · A probate attorney usually handles the process of estate administration after a person dies. An estate planning attorney, on the other hand, works with living clients on how their client's estates should be administered. The attorney could do that by helping clients prepare trusts, wills, and other relevant documents.

What does a probate lawyer do?

Certain rights and duties exist regarding the burial and disposal of the body of a decedent. Upon the death of a married person, the surviving spouse has the paramount right as to the custody of the remains of the deceased and its burial. Radomer Russ-Pol Unterstitzung Verein v. Posner, 176 Md. 332 (Md. 1939).

Which power of attorney is valid after death?

Upon the death of the principal, the power of attorney is no longer valid and instead the will is executed. Instead of the agent, now the executor of the will is responsible for carrying out the demands of the principal through the will.Jun 25, 2021

Who makes the decision for the final disposition of the body?

If the deceased didn't make any preferences legally known, then the decision falls to the next-of-kin (nearest relative). If the next of kin is unavailable or unable to make decisions of this nature, the next of kin hierarchy is followed until someone who is able to make these decisions can be found.

Who owns a dead person's ashes?

The ashes are given to the person who has applied for cremation with the funeral director. The ashes can be collected by the applicant directly from the crematorium or the applicant can nominate the funeral director to collect them on their behalf.

Does next of kin override power of attorney?

No. The term next of kin is in common use but a next of kin has no legal powers, rights or responsibilities.

How do you prove that you are next of kin?

Proving who is next of kin requires proof of identity such as a birth certificate or government-issued photo identification. An affidavit of someone who can swear to your blood relationship with the decedent may also be required.Oct 6, 2020

What are three options for the disposition of a dead body?

There are several options for disposing of a deceased person's remains.Burial. Burial is the traditional choice. ... Cremation. Cremation is an increasingly popular choice. ... Donation.

Who has rights over someone's ashes?

Who has the right to possess cremation ashes? The right to possess the ashes is likely to be “the executor*, or whoever was at the charge of the funeral” or basically the person who signed the contract with the funeral director.

Can a funeral director withhold ashes?

No, they can't. Some funeral directors choose to hold ashes until the family pay the bill, but they are not allowed to. ... And non-payment does happen, funeral costs are substantial and families will often wish to show their respects by arranging a fitting send-off.

Who is the legal owner of ashes?

The person entitled to possession of the body is the person who is under a duty to dispose of the body. A crematorium authority must hand over the ashes to the person who delivered the body for cremation.Apr 18, 2016

Who makes decisions if no power of attorney?

If you have not given someone authority to make decisions under a power of attorney, then decisions about your health, care and living arrangements will be made by your care professional, the doctor or social worker who is in charge of your treatment or care.Mar 30, 2020

Who can override a power of attorney?

PrincipalThe Principal can override either type of POA whenever they want. However, other relatives may be concerned that the Agent (in most cases a close family member like a parent, child, sibling, or spouse) is abusing their rights and responsibilities by neglecting or exploiting their loved one.Nov 3, 2019

Is the eldest child next of kin?

Siblings - brothers and sisters In the event that the deceased person passed away with no spouse, civil partner, children or parents then their siblings are considered to be the next of kin.

Who has the right to control the funeral of a deceased person?

If there are no known living relatives, a personal representative or executor of decedent’s estate may have the right to control the funeral and disposition of remains. The order of priority of next of kin and whether an executor, personal representative or agent has authority over human remains varies from state to state.

Who controls the disposition of a person's remains?

Who Controls Disposition of Remains? The types of services that are held and what happens to your remains will generally depend on the person who has legal authority over your remains after your death. State laws determine who has the legal right to control the disposition of your remains. If you leave instructions in a legally enforceable written ...

What is a pre-paid funeral contract?

A prepaid funeral contract or preneed cremation authorization form may also serve as written instructions. See funeral prepaying. Some states have appointment of agent forms that allow a person to appoint an agent to control disposition of remains. In the absence of written instructions by the deceased, the next of kin has legal authority ...

How to control cremation?

If you are concerned about how your remains will be handled, the following is a list of steps you can take to have more control: 1. Include instructions in your will regarding your preferences for cremation, burial, entombment, a viewing, and funeral services. Name someone to carry out your instructions.

What can a person do if there is a dispute over the disposition of a human remains?

If there is a dispute over the disposition of human remains, the next of kin or another individual may petition the court for an order granting authority to take possession of the remains and direct the final arrangements. The mortuary holding the remains may also petition for a court order regarding disposition of decedent’s remains.

What to do if your state does not have a right of disposition form?

If your state does not have an approved form, ask a lawyer to prepare an affidavit documenting your wishes. 4.

What is a temporary restraining order?

In such a situation, the individual may decide to file a request for injunctive relief, such as a temporary restraining order, to prevent the party with possession of deceased’s remains from having the cremation services performed.

Who should check if a decedent has a copy of his or her name?

The family should check with the decedent’s attorney or accountant to see if they have the original or a copy. The family should also check with the bank where the decedent maintained an account to see if one may be located in a safe deposit box.

Why do creditors have to hold the assets of the decedent?

Holding the assets of the decedent in an effort to prevent creditors from reclaiming their debt is a risky proposition. Creditors have the right, after enough time passes, to petition the court to open the probate estate themselves.

Why don't people open estates?

Many people believe they don’t need to open an estate because their loved one did not have a lot of money. The mistake with this belief is that the debts and taxes of the decedent often go unpaid while assets are distributed. The family is then surprised when a creditor or the IRS shows up looking to recover their claim.

What happens if there are insufficient assets in an estate?

If there are insufficient assets in the estate to satisfy all the debts or tax obligations of the decedent, those debts and obligations do not become the responsibility of family and friends. Many will assume responsibility, believing it is the right thing to do, but they are not legally required to do so.

Why is it important to protect assets after death?

Assets need to be protected. Following the death of a loved one, there is often a period of chaos. This, coupled with grieving, presents a unique opportunity for those bent on personal benefit. It is important for the family, even before the opening of an estate, to protect all assets that belonged to the decedent.

What to know after death of loved one?

10 Things to Know After the Death of a Loved One. A power of attorney is no longer valid. Many people believe that, as the power of attorney , they continue to have the power to administer an estate following the death of a loved one. This simply is not the case. A power of attorney is no longer valid after death.

What is the phone number to call for probate?

If you have questions about the management of your loved one’s estate or the probate process, call us anytime at (888) 694-1761 to get answers.

Rights provided under the California Health and Safety Code

An individual can provide written instructions, prior to death, regarding the disposition of his or her remains, including specifying the funeral services you want to be provided. Those written instructions will be controlling as long as they are clear and complete and arrangements have been made to cover the expenses related to those arrangements.

There are a variety of methods for expressing your wishes

As our elder law attorneys can tell you, there is no requisite format for the written expression of your wishes for the disposition of your remains. In fact, there are several choices that you can consider, including a testamentary expression (last will and testament), advance health care directives, and contracts with third-parties.

Expressing your wishes in your will

You may include provisions in your will regarding your wishes as to the disposition of your remains upon your death. Those provisions must be carried out regardless of whether there are questions regarding the validity of any other portions of the will.

Creating an advance health care directive

California has a statutory form that is used for creating an advance health care directive. This form includes specific language that authorizes an agent to direct the disposition of the individual’s remains upon their death.

Contracts with third-parties

Another option to consider is executing a binding agreement with a funeral home or memorial society. These organizations have forms for potential customers to use in expressing their wishes with regard to the disposition of their remains.

Other written expressions of your wishes

While there may be other options for expressing your wishes with regard to the disposition of your remains, those other methods may be more subject to challenges on the various grounds upon which other estate planning documents may be challenged. Those may include challenges based on lack of capacity, undue influence, mistake, and lack of intent.

What happens if there are no written instructions

In situations where the decedent has not left any written instructions as to their remains, the duty to decide on and arrange for the disposition, as well as payment of the expenses, will fall on specific individuals as identified in various estate planning tools.

What does a probate attorney do?

A probate attorney usually handles the process of estate administration after a person dies. An estate planning attorney, on the other hand, works with living clients on how their client's estates should be administered. The attorney could do that by helping clients prepare trusts, wills, and other relevant documents.

What is probate lawyer?

Generally speaking, probate lawyers, also called estate or trust lawyers, help executors of the estate (or “administrators," if there is no will) manage the probate process. They also may help with estate planning, such as the drafting of wills or living trusts, give advice on powers of attorney, or even serve as an executor or administrator.

What happens when a person dies with a will?

If an individual dies with a will, a probate lawyer may be hired to advise parties, such as the executor of the estate or a beneficiary, on various legal matters. For instance, an attorney may review the will to ensure the will wasn't signed or written under duress (or against the best interests of the individual).

How is an estate distributed?

When this happens, your estate is distributed according to the intestacy laws of the state where the property resides, regardless of your wishes. For instance, if you are married, your surviving spouse receives all of your intestate property under many states' intestate laws.

What to do if someone dies without a will?

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help.

Can dementia affect a will?

There are numerous reasons that wills may be challenged, although most wills go through proba te without a problem.

Can you take your will with you when you die?

As the old saying goes, you can't take it with you when you die. But a probate lawyer can help surviving family members settle your debts and distribute your assets after you're gone, with or without a will. So what is a probate lawyer?

Who has the right to control a burial?

While the primary and paramount right to possession of the body and control of the burial or is vested in the surviving spouse, the right of a surviving spouse to control the burial is dependent on the peculiar circumstances of each case, and may be waived by consent or otherwise.

What is the federal law for burial?

Federal Law: Federal statutes authorize the payment of expenses for the burial or disposal of the remains of certain persons in federal custody, persons dying on or in federally owned property or facilities, and certain federal employees who die in the line of duty.

What is the duty of a mortuary?

According to the common law, it is the duty of a mortuary to deliver a dead body relatively in good condition to the relatives of the deceased person. A mortuary must do their duty with utmost care and attention. A reasonable expedience is expected from a mortuary that carries a dead body. Moody v.

What is the order of priority in a divorce?

In other words, if there is no surviving husband or wife, the right lies in the next of kin in the order of their relation to the decedent, usually in the following order: children of proper age, parents, brothers and sisters, or more distant kin. This rule of priority is to be applied with reason.

What are the rights and obligations applicable to human remains?

The rights and obligations applicable to human remains is a topic of critical importance to a family facing a death yet is a subject that is seldom discussed or considered. This article shall outline the responsibilities and rights as to human remains.

What is the matter of the disposition of the dead?

The matter of the disposition of the dead is so involved in the public interest, including the public’s health, safety, and welfare, that it is subject to control by law instead of being subject entirely to the desires, whim, or caprice of individuals. Wolf v.

How to dispose of a body?

The most common methods of disposal are: 1 Burial of the entire body in the earth, often within a coffin 2 Cremation, which burns soft tissue and renders much of the skeleton to ash. The remains, known as “cremains” may contain larger pieces of bone which are ground in a machine to the consistency of ash. The ashes may be stored in an urn or scattered on land or water.

Who has the right to possession of a dead body?

Certain persons are entitled to the possession of dead bodies and control of their burial. Generally, a surviving spouse has the paramount right as to the custody and burial of the deceased upon his/her death [i]. On the death of a husband or a wife, the primary and paramount right to possession of the body and to control ...

What is the right to a burial?

The right of burial ordinarily includes the right to determine the time, manner and place of burial [vi]. Generally, the surviving spouse can select the place for burial. However, consideration must be given to the last expressed wish of the deceased, if any [vii]. If there is any kind of dispute between the surviving spouse and the next of kin ...

What is the test of reasonableness?

The test in determining reasonableness states that the surviving spouse must assist according to his/her ability to do so [x]. However, it is to be noted that, if there is no surviving spouse or the surviving spouse has waived the right, then the right of burial of a dead body lies upon the next of kin in the order of their relation to the decedent.

What happens if a wife is separated from her husband?

If there is no judicial separation, a wife separated from her husband has some rights regarding the funeral services of her husband. A surviving spouse who was living apart from the decedent also has some rights concerning the decedent’s funeral and burial. If s/he does not exercise these rights, the estate of the deceased must bear ...

Can a spouse control a dead body?

This means that the right of a surviving spouse to the custody of the dead body for purposes of burial is not an absolute one. However, if the right of the spouse is not promptly ...

Can an adult child be the next of kin?

In the absence of a normal parental and filial relationship at the time of death, an adult child may not claim a paramount right as the nearest next of kin to dictate the manner and place of his/her parent’s burial [xii]. It is to be noted that if there is no surviving spouse or children for the deceased, then the deceased’s parents have ...

Is a divorced person a surviving spouse?

Under some statutory provisions, a person divorced from the decedent is not a “surviving spouse,” and is not entitled to custody of the decedent’s body for purposes of burial or disposal. A surviving spouse has an implied contractual obligation to pay for necessary funeral expenses arranged by a third party.

California’s Laws Regarding The Disposition of A Person’S Remains

See more on schomerlawgroup.com

Rights Provided Under The California Health and Safety Code

There Are A Variety of Methods For Expressing Your Wishes

Expressing Your Wishes in Your Will

Creating An Advance Health Care Directive

Contracts with Third-Parties

Other Written Expressions of Your Wishes

What Happens If There Are No Written Instructions