• Funeral Homes, Mortuaries and Crematories

What must be done when someone dies?

1. 1. If the individual was not attended by medical personnel at the time of death, then someone must contact local law enforcement (police, county sheriff, etc.).
1. 2. In any death, the decedent's attending doctor, or a medical examiner or coroner, must pronounce the individual dead.
2. 3. The decedent's relatives should be contacted promptly and told of the death.
3. 4. The person responsible for the remains should contact a funeral home to arrange for appropriate burial or cremation of the remains (see below regarding the responsible person). Different religions and ethnic groups have their own burial traditions. The wishes of the deceased should be followed, to the extent those wishes are known.

Determine who is legally authorized to handle disposition of the remains.

Because the individual has died, someone must take charge of the remains. Texas law (Texas Health & Safety Code Section 711.002(g) states that an individual may leave written directions for disposition of his or her remains in one of three ways.

1. In a Will. An individual may state specific funeral instructions, and may authorize a specific individual (usually the Personal Representative of the decedent's estate) to carry out those plans, in his or her valid Will executed prior to death. The problem with doing only this, in reality, is that the Will is often not located for some time after death, or at least is not read for several days after death, which means that the funeral is long over before the funeral instructions in the Will may be discovered. It is quite common to include a provision in a Will authorizing the Personal Representative to pay for any funeral, burial, cremation or cemetery expenses not paid prior to death.

2. In a prepaid funeral contract. An individual may plan his or her funeral prior to death, sometimes many years before, and may also prepay all or a portion of the funeral costs. Such a contract, with the instructions contained in the plan, should be honored after death. If the immediate family disagrees with the instructions in the plan, there may be some hesitation on the part of the funeral home to follow the instructions in the face of the family's opposition, but most families are relieved to know exactly what the deceased wished for his or her service and disposition of the remains.

Preplanning a funeral can be a final gift to family members. It allows funeral arrangements to be enacted simply by notifying the funeral home of the death; the "work" of setting up the funeral is done by the funeral home while the family is still in transit and permits family members more time to support each other, with less last-minute work to be done. If the funeral is prepaid, it further lifts the financial burden from the family. It may also be prudent planning if it is likely that an individual may need Medicaid benefits prior to death.
When prepaying a funeral, it is most prudent to purchase a "burial" policy (not life insurance), with the help of the funeral home. The pre-paid burial funds are placed in the insurance policy and earn interest, which can cover any inflationary increase in costs prior to death. If the current funeral home goes out of business or is sold, the burial funds are still safe in the policy. If the insured individual dies out of state, or moves during the intervening years, the funeral plan may still be followed by, and the funds transferred to, whatever funeral home actually provides services at the time of death.

If you preplan and/or prepay a funeral, please let family members know you have done so and provide them with the name of and contact information for the funeral home. If no one knows of the plan, it may go unused at your death.

3. In a written instrument signed and notarized prior to death. This is most commonly done by use of a form similar to the one set out in Texas Health & Safety Code Section 711.002(b)., which is titled "Appointment of Agent to Control Disposition of Remains." Prior to death, an individual completes this form to designate an agent of his or her choice who shall control the disposition of the decedent's remains after his/her death. The agent's authority includes the option of cremating the remains. The individual granting the appointment may state special directions for his or her agent to follow (such as burial vs. cremation, where the remains are to be buried, what type of funeral should be held, what should be written on a headstone, etc.). The individual may also list successor (back-up) agents, in case the original named agent is unable to act at the time the individual dies (the agent may die first or may be too ill to act). For more information of the "Appointment of Agent for Control and Disposition of Remains", please consult an elder law or estate planning attorney. Not all states have laws similar to this Texas provision.

4. If no written instructions were left, then who is in charge? Texas Health & Safety Code Section 711.002(a) states that if no written directions were left by decedent, then the following individuals, in the following order, have the authority to dispose of the remains, through burial or cremation, and to inter the remains, and are responsible for payment of the reasonable costs incurred: a) decedent's surviving spouse; b) any of decedent's surviving adult children; c) either of decedent's surviving parents; d) any of decedent's surviving adult siblings; or, finally, e) any adult in the next closest order of kinship (determined by state inheritance statutes).

NOTE: Many states hold that the remains are the property of the next of kin, who has the authority to change the decedent's funeral wishes. The provisions outlined above pertain to deaths in Texas.

What happens if there is a dispute as to who has the authority to dispose of the remains or regarding what should be done with the remains? Those individuals seeking authority to dispose of the remains should contact a local court with the proper jurisdiction which will hear and resolve the dispute. The parties may need the assistance of one or more probate attorneys (one for each side of the argument) to assist them in approaching the court. A funeral home may properly refuse to accept or to dispose of the remains until the court has resolved the dispute among the interested parties.