Paying for the Last Expenses

When someone dies, there will be a question as to how and when their funeral and last expenses are to be paid.  Unless the decedent is survived by their spouse or they had a joint bank account with another person, there may be no ready funds available to pay for the decedent’s funeral and last affairs.  

Who is responsible for these costs in this situation? Is the person who paid the expenses entitled to reimbursement? If so, what expenses qualify for reimbursement? Texas law provides the answers to these questions.

The Decedent’s Estate is Liable

First thing is first.  Who is liable for the decedent’s last expenses?  The short answer is the estate is liable. A surviving spouse or other person who pays for the funeral costs is entitled to a priority claim against the decedent’s estate.  This priority extends to $15,000 of funeral costs.

If there are sufficient assets in the estate, the state may choose to reimburse funeral and last expenses in an amount that is more than $15,000.  But the estate will not be able to pay amounts in excess of $15,000 if the estate assets are fully used up in paying other priority expenses or, in some cases, if the personal representative opts not to pay them.

While Texas law says that the decedent’s estate is liable to pay for most of the decedent’s funeral costs, the funeral home or provider may include language in their contract to make the surviving spouse or other party personally liable for these costs.  The person signing these agreements have to read the agreements very carefully to understand exactly who is liable and for what.

What are Funeral Costs?

The term “funeral costs” is broadly construed.  It can include the traditional costs for preparation and transport and burial of the decedent’s body.  It can also include the cost of conducting memorial or burial services, meals and other incidental expenses incurred for the memorial service for family and friends, the costs for travel and meals for the person in charge of making the funeral arrangements, and cremation costs.  

Emergency Application to Pay for Funeral and Burial Expenses

If the surviving spouse or other family member is not able to pay for the funeral costs up front, Texas law allows the interested person to file an emergency application to obtain funds from the decedent’s estate to pay these expenses.  This amount is capped at $5,000.

The emergency application has to include:

  1. The name, address, and interest of the applicant.
  2. The facts showing an immediate necessity for issuance of an emergency intervention order by the court.
  3. The date and place of the decedent’s death, the decedent’s residential address, and the name and address of the funeral home holding the decedent’s remains.
  4. The names of any known or ascertainable heirs and devisees of the decedent and the reason they either cannot be contacted or have refused to assist in the decedent’s burial.  
  5. A description of the funeral and burial procedures necessary, including a statement from the funeral home that contains a detailed and itemized description of the cost of such procedures.  
  6. The name and address of any individual, entity, or financial institution, including an employer, that is in possession of any funds belonging to or due the decedent, with account numbers and balances, if known.  
  7. Whether there are any written instructions from the decedent relating to the funeral or burial.
  8. If written instructions from the decedent concerning the funeral or burial exist, the applicant must attach them to the application.

The application has to be filed in the county of the decedent’s domicile (or the county in which the real property is located if the decedent was not a resident of Texas).  The application should be filed between the third and 90th day after the decedent’s death.

If the court determines that emergency intervention is necessary, it may order funds of the decedent held by an employer, individual, or financial institution to be paid directly to a funeral home for funeral and burial expenses. Reasonable and necessary attorney’s fees and court costs incurred in obtaining the order may also be granted.  

The court clerk may issue certified copies of an emergency intervention order on the applicant’s request until the 90th day after the order was issued or until a personal representative is qualified, whichever occurs first.  A person who is furnished with a certified copy of an emergency intervention order within that period is not personally liable for actions taken in accordance with and in reliance on the order. All the applicant’s power and authority under the order ceases 90 days after the order is issued or when a personal representative is qualified, whichever occurs first.

We’ll address how to secure the decedent’s property next. Click here to continue reading.  >>>>

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