Don’t Leave Your Final Wishes Open to Interpretation

The media is filled with stories of deceased celebrities whose final wishes were either unknown or the subject of dispute. An important lesson: You can retain control of your finances after incapacity and remain in control of your visitation, funeral and burial (or cremation) plans after death, provided you have a comprehensive estate plan in place. In addition to powers of attorney, health care proxies, and living wills, an estate plan should include burial agent designations to ensure that your final wishes are respected.

Legendary soul musician Jerry Butler, known for the 1960s hit “For Your Precious Love,” died last month in Chicago. According to media reports, Mr. Butler’s assistant took care of his final arrangements including his visitation and funeral service, to the exclusion of his family. Depending on how Mr. Butler documented his plans for his final arrangements, his wishes may never be known.

Mr. Butler’s family is not alone; there have been several notable funeral disputes. Mickey Rooney’s 2014 funeral was delayed when family members disputed the late actor’s known wishes. Mary Kennedy’s 2012 funeral was resolved through a sealed court proceeding. Peter Falk’s children alleged that they were not given his funeral information. New York enacted the Peter Falk Law as a result of the Falk family dispute. Part of Peter Falk’s law requires guardianship orders to identify the people who must receive notice of an incapacitated person’s death and the funeral arrangements.

People often assume they don’t need to think about their funeral plans because their executor will make those arrangements. But under New York Public Health Law section 4201(2) an executor does not have statutory priority to make funeral plans. Without a legal document specifying who will take care of your funeral plans, by default they will be made by the individuals named in New York Public Health Law section 4201(2).

Rather than leaving such important arrangements to chance or statutory default, New York residents can legally document their final wishes and identify the people who will carry out their funeral plans. This is especially important for people without close family members; people who want their remains cremated or donated to science; or who want specific religious or civil burial services.

Estate planning is not a DIY matter, and while it is true that anyone can write a document, there is a big difference between can and should. Without proper legal representation the simplest estate plan can turn into a complicated litigation nightmare. Working with a knowledgeable estate planning attorney can help keep family fights out of the 6 o’clock news.