Marivonne R. Essex, "The Red Headed Lawyer"
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What Happens When I Die?

Posted January 10th, 2014 | by The Red Headed Lawyer

The beginning of the new year is a good time to review your Will and other end-of-life documents. Were you divorced during the past year? Did you lose a spouse to death? Or have you simply changed your mind about some provision in your previous Will? If any of these things, or other life changes, occurred it may be time for a new Will and related documents. In our Will packages, we include the documents which not only dispose of a person’s assets, but also provide for end-of-life decisions such as who makes medical and financial decisions if a person is unable to make them; whether the person consents to life support; and who controls the disposition of remains. There is a specific reason each of these documents are contained in our package and not all apply to every person. We discuss each document with clients so that they understand and can make a decision about which ones they want to include.

Recently, several clients have requested legal advice on how their remains would be handled at death and, as a result, we have added an “Agent to Control Disposition of Remains” document to our Will package. How do you know if you would need such a document? First, let’s clear up any confusion about a Will disposing of remains because many people believe that if they have a Will, that takes care of how their remains will be handled. From the time the Will is filed for probate until there is an actual hearing on the application to probate the Will is about two months. Total time to probate of a Will in Texas averages close to six months. Obviously, the remains will have been taken care of through burial or cremation long before these events occur. A Will, then, is not the most effective vehicle for settling the issue of disposition of remains. Do you know what happens to a person’s body when there is a dispute over how the remains will be handled? Here is the list, in order of superior right: a person which the decedent has appointed in writing; spouse; any adult child; a parent; any adult sibling; or certain persons related to the decedent as set out in Texas laws of descent.

Any person designated loses the right if that person does not make arrangements for the disposition within six days of being notified or ten days of learning of the death.  Also, the person designated must be willing to take on the obligation, including the associated cost and obligation of interring the body. For persons who are married, these decisions may seem to be a given. For others, especially those with domestic partners, it can be quite important to put these wishes into writing if they want to insure that the partner has the right to make the decision. Also, note that in the list, “any” adult child or “any” adult sibling can make the decision. Making the designation in writing can help cut down on family costs and squabbles where family members may quarrel over the disposition of the remains. Lastly, burial plots are separate property. This means that in a divorce, a person owning a burial plot is entitled to keep it. A person may dispose of the plot in his or her Will, subject to the spouse’s vested right. The spouse must consent for the plot to be conveyed to anyone else. Death, like divorce, is an emotional topic. And death, like divorce, goes much better with everyone concerned if careful planning is done with a skilled, caring, thoughtful lawyer well in advance.