Q: You recently wrote that people shouldn’t put funeral instructions in their wills and that they should use a funeral declaration instead. Why would using a funeral declaration be better than the will?
A: First, let me clarify what I wrote. I didn’t say that people shouldn’t put funeral instructions in a will. What I said was that people rarely put funeral instructions in the will and that it wasn’t an effective or efficient way to leave instructions on final arrangements. I stand by those statements.
There was once a time when people included final arrangements in their wills. In the 26 years that I have been practicing, I’ve done it a handful of times. However, to be honest, it fell out of favor before I was sworn into the bar.
The problem isn’t that it’s not effective. It can be. The real problem is that when a loved one dies; the first thought isn’t, where’s the will? It has been my experience that by the time the family starts looking for the will, mom is already cremated or interred. The will also doesn’t lend itself well to situations when there is a dispute about final arrangements unless you like attorneys and judges.
The three most common ways to plan for final arrangements are using a Power of Attorney (POA), using a Funeral Planning Declaration (FPD), and pre-planning with a funeral home.
As most of you know, the authority granted to an Attorney-in-Fact (AIF) in a POA terminates at the death of the principal. The exception to this termination of authority is the authority to make final arrangements for the principal. Not all POAs will have this authority. However, if the POA specifically provides the authority or references the authority granted to an AIF in the Indiana Code, chances are pretty good the authority exists and that it survived the death of the principal.
Another common way to plan is using an FPD. An FPD is a legally enforceable document that specifically addresses final arrangements. Essentially, the principal leaves instructions and then designates someone to carry out the instructions. In the world of estate planning FPDs are a fairly recent development. The FPDs tend to be treated like POAs so they are generally easily available to the family during the principal’s lifetime, and probate court involvements isn’t necessary. Personally, I like them and they are my preferred way to address final arrangements
The final common way to plan is for a person to meet with a funeral home and pre-plan. The downside is that preplanning may not be legally enforceable, at least not without a possible legal fight.
However, I will tell you that pre-planning will carry a lot of weight with the family. If mom took the time to pre-plan, I think it would be a pretty gutsy thing for a family member to fight it. I’m not saying they couldn’t fight it, but come on, who’s going to fight plans that mom personally made? Mom’s pre-plan is going to carry a lot of moral responsibility with it.
Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.