(Q3) Right of Disposition,Rights of Party Undertaking Disposition, Liability for Funeral Expenses (pg. 8-13)

Question 1

Traditional Common Law Right of Disposition Order

Answer 1

1. spouse
2. competent adult children – majority rules
3. competent parents
   4- competent siblings
   5- nearest next of kin in line of inheritance according to probate statute of the state. State statutes – vary by state

Question 2

State Statutory Exceptions to Right of Disposition

Answer 2

1. Wishes of decedent: specific directions in a will, health care power of attorney or other directive.
2. Other Directives: including, Special Power of Attorney, cremation authorization form, pre-need contract, and donation to medical science or directive pursuant to a state statute.
3. 48 states allow a person to name in a directive or other document the person they wish to make decisions regarding their disposition. Read your own state statute.

Question 3

Duty of funeral director in case of conflict

Answer 3

advise them of the law, let them try to come to an agreement, in writing. If all fails, tell them to get a court order

Question 4

Householder

Answer 4

• Owner of the property where the deceased resided at the time of death.
• May have a right if not a duty, if there is no one else.

Question 5

Secondary Right of Disposition

Answer 5

1. county of death
2. state or government owned facility – ME/Coroner
3. public or state guardian office

Question 6

Actual Possession

Answer 6

in the deceased’s presence

Question 7

Constructive Possession

Answer 7

has the right of disposition but not currently present with the body

(ex. A body at the funeral home is actual possession of the funeral home but the family has constructive possession)

Question 8

Duties included in the Right of Control for the funeral

Answer 8

• type of service
  
  • place of service
  • manner and place of disposition
  • private or public
  • type of merchandise
  • choice of funeral home; even with pre-need contract

Question 9

RIghts and Duties of the Funeral Director

Answer 9

• Derived from state statutes and contract law
• Custodian and protector of the body from time of possession until final disposition
• Comply with wishes of person with right of disposition and make the proper arrangements.
• Comply with terms of the contract
• Properly prepare deceased accordingly to the contract
• Conduct and direct the funeral
• Direct and oversee final disposition
• Properly dispose of unclaimed cremated remains pursuant to state law
• Secure proper permits for disposition.
• Comply with state and local laws
• Comply with FTC, ADA, OSHA and other regulatory agencies
• Act with due diligence
• Follow all rules of ethical conduct
• Ensure that family has signed all necessary documentation
• Comply with reasonably prudent person (funeral director/embalmer) concept
• Verify grave and comply with cemetery requirements re: OBC, MARKER, etc.

Question 10

Pre-Need Funeral Contract

Answer 10

agreement between funeral home and a person or their agent for their funeral arrangements before death

Question 11

Insurance Funded Pre-Need

Answer 11

whole life insurance policy, has cash surrender value

Question 12

Trust-funded Pre-Need

Answer 12

laws vary by state. Usually funeral home can not be trustee

Question 13

Revocabable Pre-Need

Answer 13

A pre-need contract that can be canceled and refunded

Question 14

Non-Revocable Pre-Need

Answer 14

A pre-need contract that can not be canceled and refunded

Question 15

Guaranteed Pre-Need

Answer 15

• the costs of certain individual items or the cost of the total package will never be more to your family or estate.
• Funeral home agrees to “freeze” their prices and can not charge family what their charges are at time of death

Question 16

Non-guaranteed Pre-Need

Answer 16

the funeral home will not guarantee today’s price’s for future needs, the account will still gain interest, but additional money may be due at the time of the at-need funeral arrangements.

Question 17

Tax Consequences for Pre-Need Contracts

Answer 17

interest earned on trust is taxable, but not on insurance

Question 18

3 Day Cooling Off Rule

Answer 18

The family has the opportunity to cancel for a full refund until midnight of the third business day following the sale.

Question 19

Insolvent Estate

Answer 19

Value of an estate’s assets are less than the total debts and liabilities owed

Question 20

Solvent Estate

Answer 20

Enough money in estate for funeral expenses

Question 21

Primary Liability for Disposition

Answer 21

The Decedent’s estate has primary liability, but try to get contractual liability

Question 22

Are relatives and friends liable for the funeral expenses?

Answer 22

• Other relatives/friends, usually must sign contract to be liable except the spouse
• Children not necessarily liable unless they sign the contract

Question 23

Are householders or volunteers liable for funeral expenses?

Answer 23

Householder (owned the property where deceased resided) or other volunteer is not liable, but some states allow them to make funeral arrangements if no one else is

Question 24

Are executors of the estate liable for funeral expenses?

Answer 24

must sign personally (Statute of Frauds - not liable unless in writing)

Question 25

Funeral Expense Liability under Common Law

Answer 25

husband liable for wife and children, but she is not liable for his.

Question 25

Who is the first to receive money owed to them from the deceased’s estate?

Answer 25

• Funeral home is usually #1 in line as a creditor of the estate, but not for full amount in some states.
• May depend on Rule of Reasonableness to be applied by Probate judge

Question 26

What happens if you/funeral home has to file a claim against an estate?

Answer 26

If have to file claim against estate, get a lawyer. There are time limits to file and some are fairly short.