(Q3) Right of Disposition,Rights of Party Undertaking Disposition, Liability for Funeral Expenses (pg. 8-13) Flashcards
Traditional Common Law Right of Disposition Order
- spouse
- competent adult children – majority rules
- 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
State Statutory Exceptions to Right of Disposition
- Wishes of decedent: specific directions in a will, health care power of attorney or other directive.
- 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.
- 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.
Duty of funeral director in case of conflict
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
Householder
- 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.
Secondary Right of Disposition
- county of death
- state or government owned facility – ME/Coroner
- public or state guardian office
Actual Possession
in the deceased’s presence
Constructive Possession
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)
Duties included in the Right of Control for the funeral
- 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
RIghts and Duties of the Funeral Director
- 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.
Pre-Need Funeral Contract
agreement between funeral home and a person or their agent for their funeral arrangements before death
Insurance Funded Pre-Need
whole life insurance policy, has cash surrender value
Trust-funded Pre-Need
laws vary by state. Usually funeral home can not be trustee
Revocabable Pre-Need
A pre-need contract that can be canceled and refunded
Non-Revocable Pre-Need
A pre-need contract that can not be canceled and refunded
Guaranteed Pre-Need
- 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
Non-guaranteed Pre-Need
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.
Tax Consequences for Pre-Need Contracts
interest earned on trust is taxable, but not on insurance
3 Day Cooling Off Rule
The family has the opportunity to cancel for a full refund until midnight of the third business day following the sale.
Insolvent Estate
Value of an estate’s assets are less than the total debts and liabilities owed
Solvent Estate
Enough money in estate for funeral expenses
Primary Liability for Disposition
The Decedent’s estate has primary liability, but try to get contractual liability
Are relatives and friends liable for the funeral expenses?
- Other relatives/friends, usually must sign contract to be liable except the spouse
- Children not necessarily liable unless they sign the contract
Are householders or volunteers liable for funeral expenses?
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
Are executors of the estate liable for funeral expenses?
must sign personally (Statute of Frauds - not liable unless in writing)
Who is the first to receive money owed to them from the deceased’s estate?
- 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
What happens if you/funeral home has to file a claim against an estate?
If have to file claim against estate, get a lawyer. There are time limits to file and some are fairly short.
Funeral Expense Liability under Common Law
husband liable for wife and children, but she is not liable for his.
