Burial Agent and Funeral Instructions
One of the first decisions your family must make after your death is the location and circumstances of your final resting place.
Texas law provides several methods for you to name a responsible person and provide instructions. These include:
- Your Will. If you place instructions in your will, your named executor has the authority to carry out those instructions and your estate will be responsible for the expenses incurred. The burial instructions can be carried out before going to court to probate the will (and formally appointing the executor.)
- Contract for Funeral Arrangements. This often takes the form of a prepaid funeral contract with a funeral home/cemetery. Under these circumstances, the funeral home is charged with carrying out your wishes as set out in the contract.
- Appointment for Disposition of Remains. This form, set out in state law, allows you to appoint an agent (and backup agents as well) and list your instructions. By signing the form, the agent agrees to faithfully carry out the directions you give to the extent that the person is financially able to do so. The agent is allowed to seek reimbursement from your estate.
If You Fail to Name an Agent
Texas law provides a list of persons, in priority order, with authorization to determine the location and circumstances of your final resting place. The order is as follows:
- (i) surviving spouse
- (ii) a surviving adult child
- (iii) either one of your parents
- (iv) a surviving sibling
- (v) an appointed executor or administrator of your estate
- (vi) your closest relative not listed above
The individual that steps forward to act becomes legally responsible for any expenses but is allowed to seek reimbursement from your estate. If there is a dispute, say among surviving adult children, a court is allowed to resolve the dispute.
The Appointment for Disposition of Remains Form
I always recommend my clients complete the Appointment for Disposition of Remains form. The problem with listing the information in your will is that the will may not be found right away or may not be available (think safety deposit box). In addition, making changes in your will requires either a new will or a properly executed codicil (amendment). Changing a completed Appointment for Disposition of Remains form, on the other hand, can be as simple as tearing up the existing form and any copies, and completing a new form.
Relying on Texas law to authorize the person prevents you from leaving instructions including the issue of cremation v. internment and, it may lead to court costs if you are not married at the time of death and your adult children cannot agree.