Funeral Service Law Flashcards
abatement
a proportional reduction of a legacy under a will when assets out of which such legacy are payable are not sufficient to pay it in full
actual custody
the physical possession of the dead human body or other property
ademption
the extinction or withdrawal of an inheritance because decedent did not own the named property at the time of death
administrative agency
a governmental body created by legislation empowered to regulate and issue rules and regulations
administrative law
the body of law created by Federal and State administrative agencies through implementation of powers and duties in the form of rules, regulations, orders and decisions (e.g. OSHA, FTC, state board rules and regulations).
administrator/administratrix
the man/woman who is appointed by the court to settle the estate of a decedent who died without a last Will and Testament.
agent driver
those drivers under the directions and control of the funeral establishment which is liable for the driver’s negligent actions
Americans with Disabilities Act (ADA)
a federal statute prohibiting discrimination against the disabled in employment, public transportation, telecommunications services, and public accommodations and services operated by private entities
apprentice (intern/resident trainee)
a person engaged in learning the practice of funeral directing and/or embalming under instruction, directions or personal supervision of a duly licensed funeral director and/or embalmer
bailee
a person who receives personal property from another as a bailment
bailment
a delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract
bailor
a person who delivers personal property to another as a bailment
bequest (legacy)
a gift of personal property by will
body parts
in the Uniformed Anatomical Gift Act part is defined as organs, tissues, eyes, bones, arteries, blood, other fluids and other portions of a human body for transplantation. After removal of a body part, without unnecessary mutilation, the custody of the remainder of the body rests with the person who otherwise has the right to control final disposition
brain death
total and irreversible cessation of brain function as indicated by a flat EEG reading
building code
laws, ordinances and government regulations setting forth requirements for construction, maintenance, operation, occupancy, use of appearance of buildings
burial (interment/inhumement)
the act of placing the dead human body in the ground
cadaver
a dead human body intended solely for scientific study and dissection
case law
appellate court decisions that establish precedented principles
cemetery
an area of ground set aside and dedicated for the final disposition of dead human bodies
clinical death
phase of somatic death lasting from 5-6 minutes during which life may be restored
codicil
an addition or amendment of a last will and testament executed with the same formality of the will
common carrier
any carrier required by law to convey passengers or freight without refusal if the approved fare or charge is paid (e.g., airline, train, etc.)
common law
non legislated principles and rules of action predicated upon usages and customs which the court considers binding on the community
constitution
the fundamental law that establishes the government, limits what government can and cannot do and states the underlying principles to which the government will conform
contract
an agreement between two or more competent persons which is enforceable by law
contract carrier
provides transportation for compensation only to those with whom it desires to do business (e.g., livery service)
constructive custody
the situation whereby one party has the right to acquire actual custody/possession of the dead body although another party has actual physical possession
coroner
a public officer whose duty it is to investigate cause of death when the question of accident, suicide or homicide may be evident or where there was no doctor in attendance. (medical examiner/justice of the peace)
corpse (dead human body)
the body of a dead human being, deprived of life, but not yet entirely disintegrated
cremated remains
the final product remaining after completion of the entire cremation/pulverization process. The product is never referred too as “cremains”
cremation
the reduction of a dead human body to inorganic bone fragments by intense heat in a specifically designed retort or chamber
crematory
the location of the retort/cremation chamber which will perform the cremation process
crime
an action in violation of constitution, statutes, or ordinances, e.g., treason, felony, midemeanor
custodian
status associated with funeral service practitioner/funeral establishment who becomes legal protector of dead human body from time of removal until final disposition
death
the cessation of life; permanent cessations of all vital functions and signs. (see additional definitions in embalming outline, PHT 6)
degree of kindred
relationship to decedent of his relatives; each generation is one degree, counting to a common ancestor
devise
a gift of real estate; the act/process of transferring ownership of real property. Devise applies to both transfers as well as by wills.
devisee
the person who receives real property through the process of a devise
disinterment (exhumation)
the removal of a human remains from previous location of final disposition
due diligence
the attention reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation
durable power of attorney
exists when one person appoints an agent; agent status which will become or remain effective in the event the original party should later become incapacitated.
embalmer
a person, properly licensed, who disinfects, preserves, and/or restores a dead human body
eminent domain
the inherent power of a government to take private property for public use. In the U.S. just compensation to the property owner(s) is required
entombment
the placing of remains in a crypt in a mausoleum
Environmental Protection Agency (EPA)
a governmental agency with environmental protection regulatory and enforcement authority
ascheat
forfeiture of a decedent’s property to the state in the absence of heirs
estate
the property of a deceased person, both real and/or personal
estrangement
the physical and/or emotional separation for a period of time showing the lack of affection, trust and regard
executor/executrix
a man/woman appointed by the will of a deceased person to carry out the provisions thereof and settle the estate.
Federal Trade Commission (FTC)
an agency of federal government created in 1914 to promote free and fair competition by prevention of trade restraints, price fixing, false advertising and other unfair methods of competition
final disposition
the conclusive performance of services with respect to the dead human body by one of the legally recognized methods
funeral director (funeral service practitioner)
a person properly licensed, engaged in, or conducting, or holding himself/herself out as being engaged in:
- ) preparing, other than embalming, for the burial or disposition of dead human bodies and/or
- ) maintaining or operating a funeral establishment for the preparation and disposition, or for the care of dead human bodies
funeral establishment
a facility used in the care and preparation for the funeral and/or final disposition of dead human bodies
funeral service law (mortuary law/mortuary jurisprudence)
that branch of law which relates to matters concerned with the disposal of the dead and regulation of funeral directors/embalmers and funeral establishments
general power of attorney
a written instrument authorizing one person to do anything for the principal. In other words, one party has full power of attorney for another party
gross negligent act
the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another
guaranteed contract
an agreement whereby the funeral home promises that the services and merchandise will be provided at the time of need (in the future) for a sum not exceeding the original amount of the aforementioned contract plus any accruals, regardless of the current prices associated with providing the services and merchandise at the time of the funeral.
guardian
a judicial appointment of one person to administer the affairs of another person who is incompetent by virtue of age or legal disability
heir
one who inherits, or is entitled to receive property by will or by laws of intestacy
holographic will
a will written entirely by the hand of the testator/testatrix
householder
the occupier of a house; one who owns or controls real estate where a death occurs
inheritance
the estate which passes from the decedent to his/her heirs
insolvent estate
the condition of the estate of a deceased person which is unable to pay the debts of the decedent and/or the estate
interment
the act of placing the dead human body in the ground
interstate
between two or more states
intestate
the state or condition of dying without having made a will; intestacy
intestate succession
the method used to distribute property owned by a person who dies without a valid will
intrastate
within a state
inventory
listing and valuation of a decedent’s assets by personal representative of the estate
invitee
one who has been invited on the property by the landowner; persons coming to a funeral home for the purpose of attending funerals, viewing remains, or engaging the funeral director’s services are some examples
irrevocable contract
an agreement for future funeral services which cannot be terminated or canceled prior to the death of the beneficiary
justice of the peace
a public officer whose duties in some jurisdictions may include among other things the investigation of death
kin
one’s relatives collectively; referring to blood relationship (legally, the surviving spouse is not a kin)
law
those rules of conduct commanding what is right and prohibiting what is wrong
legatee
one who inherits personal property under a will
liability
responsibility for actions and/or other debts; the quality or state of being legally obligated or accountable
lien
a claim or charge against real or personal property for payment of some debt (there can be no lien against a dead human body for it is not property)
livery
automotive equipment made available for hire
living will
a document which governs the withholding or withdrawal of life-sustaining treatment from an individual in the event of an incurable or irreversible condition that will cause death within a relatively short time, and which becomes effective when such person is no longer able to make decisions regarding his/her medical treatment
malpractice
improper or negligent professional act by a professional person
medical examiner
a forensically-trained physician whose duty is to investigate questionable or unattended deaths (has replaced the coroner in many states)
mental anguish
mental suffering resulting from grief, severe disappointment, indignation, wounded pride, shame, public humiliation, despair, etc., and may be accompanied by physical injury or by an outrageous intentional or grossly negligent act.
morgue
a place where dead human bodies are kept until identified and/or released for final disposition
mortgage
a secured loan on a parcel of real estate
moral turpitude
an act showing inherent basenss or vilenss of principle; shameful wickedness; depravity
mutilation
any altering or change made to a dead human body from the time of death, other than by natural causes
negligence
failure to exercise ordinary care; omission to do something which a reasonable prudent person would do under ordinary or similar circumstances or the doing of something which a reasonable and prudent person would not do; the lack of due care (exercised by a wrongdoer who has not acted as a reasonable person would).
non-guaranteed contract
agreement in which the funeral home promises to apply the amount pre-paid plus any accruals to the balance due. However, the cost of the funeral will be based upon the current price for the services and merchandise at the time the death occurs.
nuisance
a landowner’s use of property which interferes with the public or another landowner’s use of his property
nuisance in fact
acts, occupations or structures which are not nuisances per se, but may become nuisances by reason of the location or manner in which it is operated
nuisance per se
acts, occupations or structures which are nuisances at all times and under all circumstances; it may be prejudicial to public morals, dangerous to life, or injurious to public rights
nuncupative will
oral will declared or dictated by testator during last illness before appropriate witnesses to dispose of personal property and afterwards reduced to writing (not valid in all states)
Occupational Safety and Health Administration (OSHA)
a governmental agency with the responsibility for regulatory and enforcement of safety and health matters for most employees
ordinance
a law passed by a local municipal governing body (e.g., zoning, building, safety, etc.)
outrageous act
an act with complete disregard for proper conduct which transcends the bounds of common decency
per capita
the method of dividing an estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree of kindred to the decedent
personal representative
person who represents and administers the estate of deceased persons; executor and/or administrator of an estate
personal service contract
contract which involves such knowledge, skills or confidence that it can only be performed by the person with whom it is made; a contract whereby both parties should recognize that any breach will usually cause anguish
per stirpes
the method of proportionately dividing an estate between beneficiaries according to their deceased ancestor’s share
police power
the inherent power of every government to make reasonable laws to protect the safety, health, morals and general welfare of its citizens
power of attorney
an instrument granting someone authority to act as agent or attorney-in-fact for the grantor; an ordinary power of attorney is revocable and automatically terminates upon the death or incapacity of the principal
precedent
a decision of a higher court (e.g., appellate or supreme court) which is thereafter followed as an example in subsequent similar cases
preferred claim
a claim which is accorded a priority, advantage or privilege; a superior claim or right of payment as against another of the same kind or class. The first claim to be paid is the highest preferred claim and superior to all other claims
pre-funded funeral arrangements
funeral arrangements made in advance of need that include provisions for funding or prepayment
preparation room
that portion or location in a funeral establishment specifically designed and equipped for embalming and otherwise preparing dead human bodies
pre-planned funeral arrangements
funeral arrangements made in advance of need that do no include provisions for funding or prepayment.
priority
- ) the order in which claims will be paid when there are insufficient assets to pay all of the claims;
- ) the order in which certain classes of people have the right to make decisions concerning the disposition of the dead body
private carrier
those who transport only in particular instances and only for those they choose to contract with (e.g., funeral home vehicles and livery)
private cemetery
a cemetery owned by a private enterprise such as a corporation for profit, a non-profit corporation, partnership, sole owners, religious orders, etc.
probate
the process of preserving the estate, determining the validity of a will and distributing the estate to the proper heirs
probate court
a court having jurisdiction over estates
probate estate
the property of a decedent that is subject to administration by the executor or administrator of an estate
public cemetery
a cemetery owned by a governmental unit (federal, state or municipal)
quasi contract
a fictional contract created or implied by a court for a person who is unable to contract for himself (e.g., medical care, death); an obligation which law creates in the absence of agreement; is invoked by courts where there is unjust enrichment
quasi-property theory
the accepted theory of the legal status of a dead human body; rights associated with the body are as if it were property for the purpose of disposition only
reciprocity
the relationship existing between two states whereby each extends some privileges of licensure to licensees of the other state
replevin
an action to recover possession of wrongfully withheld personal property
restrictive covenant
provision in a deed limiting the use of property and prohibiting certain uses
revocable contract
agreement which may be terminated by the purchaser at any time prior to the death of the beneficiary with a refund of the monies paid on the contract as prescribed by state law
revocation
the omission or cancellation of an instrument, act, license or promise
rules and regulations
enactments by an administrative body within the jurisdiction of that agency
secured claim
a debt which is supported by a pledge, mortgage or lien on assets belonging to the debtor
soldiers and sailors will
a nuncupative will, informal in nature, in which a soldier in the field or sailor at sea may dispose of personal property only.
solvent estate
an estate in which the assets exceed the liabilities
springing power of attorney
a written instrument authorizing one person to act as an agent for another effective only upon a certain event occurring
stare decisis
a policy of courts to stand by a precedent and apply it to all future cases where the facts are substantially the same; to stand by things decided
statute
a law enacted by a federal or state legislative body
statutory law
law created by legislative bodies in contrast to law generated by judicial opinions (case law) and administrative bodies
testate
the condition of leaving a will at death
testator
a man who makes a valid will
testatrix
a woman who makes a valid will
third party contracts
agreements which involve the funeral director/funeral home because the family being served has contracted with someone else (a third party) for services or merchandise also available from the funeral home i.e. caskets, vaults, urns, pre-need insurance, etc.
tort
a private or civil wrong, other than breach of contract, for which there may be action for damages.
trespasser
one who intentionally and without consent or privilege enters another’s property
trust account
account established by one individual to be held for the benefit of another (as a method of payment for funeral expenses); creates a fiduciary responsibility. Money paid to a funeral home for future services is placed in an account with the funeral home as trustee for the benefit of another.
trustee
one who holds title to property or another position of trust to a beneficiary; in funeral arrangements, the person who has the right to control funeral does so on behalf of all survivors
Uniform Anatomical Gift Act (UAGA)
a law permitting a person of legal age and sound mind to give all or any party of his/her body to take effect upon his/her death or gives the right to another
Uniform Probate Code
a model law intended to achieve uniformity in probate proceedings throughout the U.S.
unsecured claim
a claim which is not supported by a pledge, mortgage or lien on other assets
vital statistics
the registration, preparation, transcription, collection, compilation and preservation of data pertaining to births, adoptions, deaths, stillbirths, marital status, etc.
volunteer driver
those drivers not under the control of the funeral director
will
an instrument executed with required formality, by persons making disposition of their property to take effect upon their death
zoning ordinance
a law passed by a municipality by virtue of the police power which regulates and prescribes the kind of building, residences, or businesses that shall be built and used in different parts of the municipality
