Disposing of the Body
One of the most pressing concerns when someone dies is figuring out what to do with the the body or remains and making the necessary arrangements for the body or remains.
Human remains can be donated, buried, entombed, or cremated. Thus, one must determine whether the decedent is an organ or tissue donor, whether the decent left burial instructions and how to make these arrangements, and how to deal with funeral homes and other businesses and service providers.
Organ and Tissue Donor Status
Texas law allows organ and tissue donations by:
- including donation language in a valid will (or other document subscribed to by two witnesses),
- a notation on a Texas driver’s license or a card issued by another organization that is intended to be carried with the would-be donor, or
- registering with an online donor registry.
If the donation is made by will or other document, the family or loved ones may need to alert the medical personnel to this fact.
Even if these documents or processes are complete, it may not be possible to salvage the organs or tissues. To donate organs, the would-be donor must die in a hospital while on a ventilator. This ensures that the organs are suitable for donation.
In most cases, the hospital will alert organ recovery agencies for patients who are donors and who meet these criteria. These organizations typically provide the donor’s family or loved ones with a Document of Gift form before they begin the process of recovering the organs and tissues.
It should also be noted that there are some organs that do not need a constant blood supply to be suitable for donation. The hospital personnel or funeral home director and organ recovery agencies may be able to recover these organs even if the patient did not die in the care of the hospital or while on a ventilator.
Written Burial Instructions
Texas law also allows a person to provide written directions for the disposition of their remains. This can be provided for in a:
- valid will,
- prepaid funeral contract, or
- another written and acknowledged document.
If the directions are in a will, they shall be carried out immediately without the necessity of probate. If the will is not probated or is declared invalid for testamentary purposes, the directions are valid to the extent to which they have been if acted on in good faith.
Most directives are included in document that is separate from the will. The reason for this is that the will is generally filed in the public records and most people do not care to have their medical wishes made public.
Absent a will, Texas law provides a fill-in form for appointing an agent to make these decisions. The form can be used to detail the specific powers granted and not granted.
Texas law goes on to require the person authorized to carry out the directions to do so if they are financially able to do so. This highlights the need to appoint someone who can afford to follow the directions and who is willing to do so.
Prepaid funeral contracts can be handy for this purpose. With a prepaid funeral contract, the party that is obligated to provide services is liable for additional expenses incurred for disposing of the decedent’s body if they breach the contract.
So what can a written directive, will, or funeral contract provide for? Texas law says that they may provide directions as to any lawful request related to the funeral or burial arrangements, including instructions to cremate the body. This can even include very detailed instructions, such as what the gravestone should say. The courts generally uphold all but highly unreasonable directions.
No Written Burial Instructions
In the absence of written burial instructions, Texas law provides a priority list of persons who have the right to control the disposition of the body, including cremation.
This priority list is as follows:
- The person designated in a written instrument signed by the decedent,
- The decedent’s surviving spouse,
- Any one of the decedent’s surviving adult children,
- Either one of the decedent’s surviving parents,
- Any one of the decedent’s surviving adult siblings,
- Any one or more of the duly qualified executors or administrators of the decedent’s estate, or
- Any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.
So if the designated person does not fulfill these duties, then the surviving spouse has the right to do so. If the surviving spouse refuses, then any of the surviving adult children has the right to do so.
It should be noted that Texas law allows the probate court to limit the spouse’s right to arrange for the funeral if they were suspected to have caused the death. The personal representative named in the will or the next of kin has to file an application with the probate court to limit the spouse’s ability to control the burial to avail themselves of this right. This is usually done via an emergency application, which gets expedited consideration by the probate court.
Failing to Act Timely Terminates the Right
What happens if the person with the right to control the disposition, what happens then? Texas law supplies this answer too.
If the person fails to make the final arrangements or appoint another person to make final arrangements for the disposition before the earlier of the 6th day after the date the person received notice of the decedent’s death or the 10th day after the date the decedent died, the person is presumed to be unable or unwilling to control the disposition.
The law says that the person’s right to control the disposition is terminated at that point. The right to control the disposition is passed to the following persons in the following priority (a) any other person in the same priority class as the person whose right was terminated or (b) a person in a different priority class.
When there is a Dispute Over the Body
If there is a dispute as to the burial arrangements, it is possible to have the courts resolve the dispute.
The funeral home can refuse to accept the decedent’s body and refuse to carry out the decedent’s wishes in these cases until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.
This is also handled by an emergency application to the probate court. But if the party is seeking to have the body cremated rather than buried, the court may require the applicant to file it as a declaratory relief action (which has a 20 day notice period).
Dealing With Funeral Homes & Others
The last step is to make arrangements to have the decedent’s remains transported to the mortuary. The person with the right to control the decedent’s body will typically contact a funeral home and the funeral home will then arrange transportation for the decedent’s body.
While a funeral home is contracted with to provide services in most cases, a family could take care of all aspects of disposition from death to internment, inurnment, entombment or transporting out of state without the assistance of a funeral home.
There are a number of services that may be purchased from a funeral home and other third parties, such as embalming, purchasing a casket, making cemetery arrangements, engaging a minister, and deciding on what type of funeral service to have.
The decedent’s family members or loved ones may be at a disadvantage when negotiating with these third parties. This is often due to not being familiar with the process, a fragile mental state given the death, a perceived need to expedite the funeral, or not understanding that it is possible to shop around for services and better prices.
Texas law recognizes this disadvantage in negotiating position. The law sets out some rules that funeral homes must follow. For example, Texas law provides that a funeral home has to provide current retail price information over the telephone if requested. They also have to provide a General Price List to itemize the costs of their funeral services and merchandise. They may also provide a Casket Price List, an Outer Burial Container Price List, and an Urn Price List too. These price lists must specify the charges for:
- Forwarding or receiving remains to or from the funeral estatementment;
- Direct cremation;
- Immediate burial;
- Other preparations of the body;
- Use of funeral establishment and staff for viewing, funeral ceremony, memorial service and/or graveside services;
- Use of hearse and/or limousine;
- Caskets and/or outer enclosures if not provided on a separate list;
- Filing a claim seeking life insurance proceeds; and
- Other itemized services provided by the funeral establishment and staff.
The funeral home must then provide a written and signed contract with the services and merchandise selected.
Texas law also provides protections for prepaid funeral contracts. While prepaid funeral contracts vary in terms, funding options, and coverage, the purchaser is entitled to receive all guaranteed items selected on the contract at no additional charge per the terms included in the contract. This helps ensure that the person who dies gets what they paid for, given that they are not around to tend to their own financial affairs.
But this does not mean that the funeral provider cannot provide and charge for additional services. There may be additional charges for items that are not part of the prepaid contract or those cash advance items purchased as non-guaranteed items. The person handling a probate where there is a prepaid funeral contract should get the contract and confirm whether any services are being provided that are outside of the scope of the contract.
We’ll address how to get a death certificate next. Click here to continue reading. >>>>
Hire an Experienced Probate Attorney
Do you need help with a probate matter in Houston-metro area or the surrounding communities? We are experienced probate attorneys who represent clients with sensitive probate matters. If so, please give us a call us at or use the contact form below to see how we can help.