View Our Practice Areas

Compassionate Guidance For Funeral Directive Planning

It is important while preparing your estate plan that you consider who will be handling your funeral arrangements. This is often a source of great family conflict as disagreements arise over such things as whether individuals should be buried or cremated, where they should be buried, where the ashes should be scattered, whether or not there should be a church service and at which church and who should be in charge of these decisions.

Ohio law provides that individuals can execute a Designation of Funeral Representative. This document is recognized by funeral directors and is directed to cemetery organizations, crematory operators, businesses operating a columbarium, embalmers, funeral homes and any other person asked to assist with the funeral, burial, cremation or other arrangements.

The Designation of Funeral Representative permits an individual to designate a representative and a successor representative to handle their funeral arrangements. The person executing such a document can indicate their preferences regarding burial, cremation, religious services and the like. The person executing such a document can also indicate the financial resources they anticipate being used to pay for these expenses.

If you fail to designate a funeral representative, Ohio law states that the right of disposition is assigned to the following persons, if mentally competent adults, who can be located with reasonable effort, in the following order:

  • The deceased person's surviving spouse; or
  • The deceased person's surviving sibling (whether whole or half-blood) or, if there is more than one surviving sibling, all of the siblings; or
  • The deceased person's surviving grandparent or grandparents; or
  • The deceased person's surviving grandchild, or if there is more than one surviving grandchild, all of the surviving grandchildren collectively; or
  • The lineal descendants of the deceased person's grandparents; or
  • The person that was the deceased person's guardian at the time of their death; or
  • Any other person willing to assume the right of disposition, including the personal representative of the deceased person's estate or the licensed funeral director with custody of the deceased person's body, after attesting in writing that a good faith effort has been made to locate the persons listed above.

If this law is applied, controversy can still arise when a group of individuals such as siblings are charged with making a determination as to the disposition of the remains and they cannot agree. In such cases, the decision of the majority will control. If there is a deadlock and no majority decision can be reached, then the probate court in the county where the deceased person resided at the time of death shall make the decision.

In making its decision, the probate court shall consider the following:

  1. Whether evidence presented to, or in the possession of the court, demonstrates that the person who is the subject of the motion and the deceased person had a close personal relationship;
  2. The reasonableness and practicality of any plans that the person who is the subject of the motion may have for the deceased person's funeral, burial, cremation or final disposition, including the degree to which such plans allow maximum participation by all persons who wish to pay their final respects to the deceased person;
  3. The willingness of the person who is the subject of the motion to assume the responsibility to pay for the deceased person's funeral, burial, cremation or final disposition and the desires of that person;
  4. The convenience and needs of other families and friends wishing to pay their final respects to the deceased person;
  5. The express written desires of the deceased person.

To ensure that your wishes are followed and to avoid the controversy that may arise when family members disagree, it is strongly recommended that you complete a Declaration of Funeral Arrangements, appoint a representative and successor representative to act on your behalf and set forth your final wishes with regarding to your burial and funeral arrangements. Our attorneys can help.

Peace Of Mind For The Future

To add a funeral directive as part of your complete estate plan, contact our Cleveland office to meet with one of our lawyers by calling us at 216-245-0504 or completing the online contact form. The experienced estate planning guidance you need is a phone call away.