Parker, Pollard, Wilton, and Peaden - Attorneys at Law

Should Burial Arrangements Be Part of My Will?

Paula L. Peaden Written by:

In Virginia, each person has the right to dictate the disposition of his or her remains, whether by cremation, interment, entombment, memorialization, or some combination thereof. Though arranging your own funeral might seem strange, it is a good way to forestall disagreements about how your body is to be treated. At first glance, it may seem like a good idea to incorporate this component of estate planning in your will. However, the executor you name will not be able to act until he or she has qualified — which might not happen until weeks after your death — so your will is not a good place for you to dictate your funeral arrangement. In addition, your will probably won’t be looked at until after burial has already occurred.

As an alternative, Virginia law allows you or your lawyer to draft binding burial designation instructions. This document does not have to be complicated; in fact, it can be as simple as naming the individual you want to make arrangements regarding your funeral and the disposition of your remains following your death. It is particularly important to sign a burial designation form if you believe there may be a conflict among your family members regarding burial arrangements or if you don’t want a family member to make your final arrangements. If you want, you can also include more specific instructions, like a particular funeral home you want to handle your remains.

If you plan on being cremated, make sure that your family is aware of your wishes and that the person you designate agrees with your decision. If you want your remains sent by air travel there are rules and regulations regarding air travel and cremated remains (“cremains”). The first step to ensuring that cremains reach their final destination safely is to pass through TSA’s security checkpoints. To do so, TSA has some strict guidelines that must be followed.  The second step is to make sure your family is aware of airline specific policies regarding cremains. Some airlines require a death certificate or official transit letter from the funeral home/crematorium. Other airlines do not allow cremains in checked luggage, instead requiring that they be packed in a carry-on.

Regardless of what you include in the burial designation, it must be signed and notarized, and the person you designate therein must accept it in writing. Once that is done, however, the designee has priority over anyone else who may have otherwise been entitled to make those arrangements.  Many funeral homes will work with you on a prepaid plan, but don’t forget to also designate who has legal authority to sign for your final arrangements. If you are the designee, before signing a contract that was not prepaid, you should understand that you may be held personally liable if sufficient estate assets are not available.