InfoSub - Who Controls? Who Pays?

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InfoSheet SubPage - Who Controls - Who Pays?

Ocean Grove Memorial Home
118 Main Avenue, Ocean Grove, New Jersey 07756

Thomas J. Saragusa, Manager
N. J. License No. 4036

VOICE 732-775-0434 - - OGMHognj@aol.com

Who Determines "Right of Burial?"

Who Pays?

Determination of Right of Burial and Responsibility for Payment.

In New Jersey, the “Right of Burial” is granted to the (qualified) “Next of Kin” who may determine all conditions and details including the funeral home services, religious ceremonies and method and place of final disposition. The existence of “pre-death funeral arrangements with a funeral director” made by the decedent does not limit the rights of the next of kin to determine all details.

However, certain “Other Directions” initiated by the decedent prior to death may limit the “rights” of the next of kin. The person in charge (possessing “right to control”) is the:

Surviving spouse - (unless divorced) or in the absence of a qualified spouse

A majority of surviving children (1 of 1 - 2 of 2 - 2 of 3 - 3 of 4 - 3 of 5 - 4 of 6, etc.) or in the absence of a qualified spouse and any qualified children

Surviving parent or parents or in the absence of a qualified spouse and any qualified children and any qualified parents:

A majority of all surviving siblings, i.e. brothers and sisters or in the absence of all of the above noted relatives:

Others according to their Degree of Consanguinity (blood relationship) including, usually in this order

grandchildren of majority age

great-grandchildren of majority age

aunts and uncles

nieces and nephews

cousins and then

other more distant blood relatives according to their degree of consanguinity.

New Jersey 8A:5-18 states that if an appropriate document exists (separate from the will) that was signed by the decedent naming another person as being in charge of funeral arrangements, that person’s authority supersedes the line up of individuals with “right to control” as noted above. The mere existence of a preneed funeral arrangement with a funeral director or a prepaid funeral agreement even if signed by the decedent does not constitute “other directions” recognized in this statute. Rather, it is the individual so appointed by the decedent, who may determine final arrangements. (A competent court may be consulted by any vested party in a dispute.)

Any qualified next of kin may relinquish (renounce) their right to control funeral arrangements to the immediately succeeding level of relationship, i. e., assuming no surviving spouse or children, a sole surviving parent may relinquish Right of Burial to a majority of surviving siblings, but not directly to any one of several siblings nor to anyone in a lower level of consanguinity, such as a niece. The next of kin who assumes Right of Burial may, however, seek assistance from family, friends and even an attorney while retaining his “right to control.”

Power of Attorney ceases at death and the executor or administrator is never empowered until the eleventh day after the date of death. In the meantime, the next of kin is granted the Right of Burial. Merely being Power of Attorney or being nominated in the will to be the executor of the estate or being named in the will to inherit is (nearly) meaningless when it comes to determining who may control funeral arrangements. If a document naming a person as the individual in charge of making funeral arrangements is not available at the time of death or is not "pressed" for authority, that appointment is also meaningless.

If a next of kin refuses to relinquish control (Right of Burial) and also refuses to make the funeral arrangements, a court of appropriate jurisdiction should be consulted to appoint a person to be in charge and complete funeral arrangements.

If a person resides and dies in New Jersey and leaves no will and no relatives and no prepaid funeral arrangements (and no one volunteers to arrange and pay for funeral arrangements) the decedent has died “in escheat” and the N. J. Treasury Department will take charge of the estate and ultimately make funeral arrangement. (Contact Kevin Wolfe 609-984-0226).

Responsibility for Payment

The financial arrangements between the funeral home and the person(s) controlling and contracting for the final disposition are always considered to be a civil agreement between the two parties. This personal debt is usually (and ultimately) assumed and paid (or reimbursed) from the assets of the estate. If the assets of the estate are insufficient to pay for the funeral arrangements, payment for the final arrangements remains the personal responsibility of the person controlling and contracting for the final disposition. The individual who assumes responsibility to control final disposition may be personally liable to pay for all funeral expenses deemed “unreasonable” by the estate if an appropriate court is consulted.

In New Jersey, payment for reasonable funeral expenses is generally the ultimate responsibility of the estate of the decedent unless the responsibility of payment is assumed or reduced by another entity (such as a prepaid trust) or an individual. As the personal representative of the decedent, the qualified executor or the court appointed administrator of the estate is generally responsible to accomplish the transfer of funds to pay reasonable funeral expenses from the assets of the estate of the decedent.

Funeral homes often advance small cash payments for the convenience of the arranger (personally) but large payments required, for example, by a cemetery are not usually advanced by the funeral home. Any individual (either of kin or not) may initially disburse required funeral expenses and then, as a creditor of the estate, be reimbursed from the assets of the estate.

Funeral expenses are considered to be “preferred” and the funeral home (or the person advancing all or some of the funeral expenses) has the right to be paid early and prior to standard creditors (such as credit card companies).

The proceeds of insurance on the life of the decedent but payable to a named beneficiary are transferred “outside” the will and are not required to be used for the payment of funeral expenses (unless agreed to by that beneficiary).

Under usual circumstances, no governmental agency, including a local or county “welfare board” will pay for funeral expenses unless the decedent had been acknowledged, prior to death, as being eligible to receive that board's assistance. Other than such governmental assistance or funds in a prepaid funeral trust fund or the assets of the estate, only the personal assets of a willing individual are available to pay for funeral expenses.

SUMMARY

Who Controls?

A qualified and willing person specifically authorized in writing by the decedent, with appropriate documentation.

A majority of the qualified and willing nearest of kin according to their degree of consanguinity. (The anticipated executor of an existing will with the guidance of those mentioned in the will.)

The State of New Jersey Department of Treasury.

Who Pays? (In order, IF they exist.)

A volunteer.

A prepaid funeral trust fund or funeral insurance.

The executor or administrator from the assets of the estate.

Local or county government Welfare Board (limited funds with specific limitations).

Personal funds of a relative or friend (possibly with proceeds from a life insurance policy).

This is not a legal document and is to be used only as a guide.

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