The Value of Adding Basic Funeral Planning to Your Practice

By Damon J. Wenig

Damon J. Wenig, MBA, CFSP, is the National Preneed and Funeral Expense Trust Director at Krause Financial. He is also a licensed funeral director.

A Western legal concept established well over 2,000 years ago recognizes that people should have control of their disposition after they die. This idea, created by ancient Romans, allowed people to predetermine what happens to their bodies after death. As long as the decisions were properly established before their death, the individual could prescribe the manner of disposition and ceremony after their death. But what happens when these disposition directives are not established? Or further, what if they were not established correctly?

Under common law, a dead human body is quasi-property belonging to the nearest relative. In mortuary law, this construct is known as the right and duty of disposition, which grants rights to the nearest family members to make disposition decisions after death.

Although a line of authority seems to be relatively straightforward, it has become less linear as families have denuclearized and more options for disposition have been made available. The authority established by these disposition directives during the preplanning process have become increasingly important in establishing legal authority at the time of death.

Needless to say, integrating funeral preplanning in the estate planning process has become even more important for attorneys and deathcare providers. This article will give a high-level education of disposition directives and, more importantly, explain how attorneys can work with deathcare providers and their clients to incorporate funeral preplanning and funding into their practices, thus avoiding complex legal and financial difficulties that often arise at the time of death.

Disposition Directives

Funeral directors generally take direction from the next of kin regarding the final disposition and ceremony of the deceased. The family succession line determines who is responsible and able to make crucial decisions at the time of death.

In a case where a competent spouse remains, or one adult child or sibling, the progression is most often linear and straightforward. But as families continue to denuclearize and become more socially complex, these succession lines of authority become increasingly more complicated.

Circumstances surrounding the death of an unmarried child whose disposition rights fell to divorced parents are often complicated, further compounding the difficulty amid the pressure of trauma and grief. Or, perhaps, other relationally complex situations arise between siblings’ varying faith beliefs and their applicability to their parents’ final wishes.

Case Study: The Jones Family Dilemma

Upon the sudden passing of their elderly mother, the Jones family found themselves entangled in a dispute regarding the mother’s wishes surrounding her final disposition. Mrs.

Jones, previously widowed, had two daughters. One daughter served as her primary caregiver and confidante. The other daughter lived out of state and had a socially fractured relationship with the family.

Before her death, Mrs. Jones had shared her desire to have the same type of funeral as her late husband, a traditional burial funeral and mass. After Mrs. Jones died and the out-of-state daughter was notified, she insisted that a cremation take place to reduce the costs and ecological impact.

The family was at a standstill. The local daughter, who had a close relationship with her mother, was compelled to follow her mother’s requests before death but was unable to move forward despite knowing her mother’s desire. Legally, in most states, each child has an equal right—an equal vote of sorts. Thus, each vote is now competing.

In this scenario, the funeral home was unable to move forward with preparing Mrs. Jones’s body for burial or cremation because a legal majority of the next of kin did not agree on the method of final disposition. This left everything hanging in the air, while tensions continued to rise and relationships continued to disintegrate.

This familial conflict highlights the complexities of modern funeral planning and the need for advance legal directives to navigate competing interests.

The Solution: Proper Funeral Planning

These complexities are quickly resolved with proper planning and diligence. The resolution to this dilemma could have been simple. Ahead of death, advance directives through appropriate planning and Right of Disposition paperwork could have been executed according to state law. Mrs. Jones could have either excluded certain individuals from having rights in the process or given all authority to one person, thus alleviating relational conflict for survivors and the guilt associated.

Even if the next of kin are in agreement, they may misunderstand their loved one’s wishes. Or, perhaps, those wishes changed over the years, and different directions were given to different people. Even in the most functional, loving family, the time of grief and death elicits emotionally charged outcomes. Having appropriate discussions and preparing the proper legal documents ahead of time help reduce the natural tension and dynamics that arise amid grief, as in the case of Mrs. Jones.

Although each state has its own unique legal documents and nuances in the law surrounding final disposition authority, all states have a route for disposition directives to ensure that people or those in charge after their deaths can control dispositions.

Michael D. Sharkey, who is both a mortuary law attorney and a licensed funeral director, strongly advocates for attorneys to include basic legal funeral planning discussions within the realm of estate planning practices. He asserts, “Simply put, setting up the Right of Disposition before the death helps eliminate the disputes at the time of death.” Sharkey recognizes that funeral planning is often overlooked by many attorneys as a potential addition to their service offerings. Yet, he argues, “It’s an important value-added service. If for no other reason than you are trying to just give a comprehensive understanding of a person’s legal rights and obligations, you are making a true impact.”

The Will Is Not the Right Place for Disposition Instructions

You might consider that discussing these matters with clients and including them in the will is sufficient. The necessity of preparing separate, accessible documents cannot be overstated. Sharkey explains, “When you put the disposition directions in the will, the intention was good, but the actual reality is that it just doesn’t work. The authorization of disposition should be kept in a place that is highly accessible, and ideally with the funeral home of choice in a preneed file.”

As there is no federal legislation that guides the right to disposition, this also means that a firm understanding of one’s state laws and how they correlate to your clients’ needs is crucial. For example, in Wisconsin, Wisconsin Statutes § 154.30 prescribes specific outlines for these rights but also gives a person authority through a specified advance directive form to control arrangements.

During the critical moments following a death, funeral providers immediately turn to the legal next of kin for urgent decision-making, sometimes within an hour of the event. If neither the family nor the funeral home possesses any preexisting disposition directives, the default process is guided by the next of kin, often before the will is ever viewed or discussed. Typically, it is several days after the death before the will is reviewed with the family, by which time the funeral arrangements are likely to have already been set in motion.

In this case, Wisconsin’s Authorization for Final Disposition provides a clear and proper pathway for these instructions to take place. For these reasons, it is vital that disposition directives are meticulously drafted by the attorney and then shared and communicated clearly with the family. This proactive approach ensures that all parties are informed and aligned regarding the deceased’s final wishes and who is authorized to make decisions concerning their disposition. Additionally, if a specific funeral home has been chosen prior to death, these directives should also be forwarded to the establishment to be kept on file, thus facilitating a seamless adherence to the predetermined plans at the time of death.

Beyond the Paperwork

The title of these deathcare directives often denotes specifics around disposition preferences, but it’s important to remember that they extend much broader than one’s choice for final disposition. Some individuals choose to narrow in on specific details surrounding funeral details, such as the desired location of their funeral, funeral food preferences, or even specifics around what jewelry should be buried or cremated with the individual.

Further, as cremation continues to gain popularity, these directives can also give directions as to what should be done with the cremated remains. Some families choose to have an urn buried in a cemetery or placed in a niche in a mausoleum. Some choose to scatter the remains in a mutually agreed-upon scenario, and others choose to keep the cremated remains or give them to family members. As the options continue to broaden, having a thorough, detailed outline becomes even more important.

Though drafting and retaining these legal documents is an important service inclusion, adding funeral planning extends beyond individual preferences; it carries legal weight. Attorneys excel at protecting clients’ interests, necessitating readiness for all potential scenarios, even the sensitive ones. Incorporating funeral planning into your services not only ensures the legal preservation of your clients’ last wishes but also provides indispensable reassurance to their families.

It’s crucial to understand that diving deep into funeral planning isn’t always advisable for you or your client. But fostering referral networks and connecting clients with reputable funeral service providers not only offers outstanding service to your client but also opens the door to new business opportunities for you.

The level of involvement of attorneys in assisting clients with funeral planning can vary greatly. Some lawyers simply initiate discussions, encouraging clients to think about these matters and making referrals. Others help individuals set up and fund a funeral expense trust or preneed policy, ensuring the financial viability of the funeral plans and protecting assets for potential Medicaid eligibility. Incorporating general funeral planning into your practice allows you to customize your level of engagement yet enhance the quality of your relationships with clients and funeral professionals in your community.

Funeral Planning in Crisis Situations

In scenarios necessitating crisis planning, your clients and their families are confronted with the complexities of Medicaid eligibility. Funeral planning offers an opportunity to allocate funds for funeral expenses through options like a funeral expense trust or preneed arrangement, helping to safeguard assets for Medicaid qualification and instilling peace of mind for the client and their loved ones. Some clients choose to extend the discussions with local funeral providers to ensure comprehensive arrangements. This allows them to have even greater control and clarity regarding their wishes. By addressing their final wishes, you not only fulfill their desires but also expedite Medicaid eligibility.

Dale M. Krause, founder and CEO of Krause Financial, primarily assists estate planning and elder law attorneys in Medicaid planning with their senior clients, and he views funeral planning as a crucial part of that process. Krause is an attorney in the field of elder law and crisis Medicaid planning. He explains, “Funeral planning is an essential piece of the crisis Medicaid planning process since it helps clients set aside funds for these inevitable expenses, safeguard their legacy, and ensure a dignified farewell—all while navigating the Medicaid spend-down.”

Proactive Funeral Planning

Proactive planners understand the importance of charting their course, even amid uncertainty. Although they may not currently face a crisis, these clients recognize the value of forward thinking and are looking for ways to set up plans for greater ease and agility when the need arises. Whether they’re establishing initial planning documents or transitioning into retirement, providing funeral preplanning services empowers them to dictate their final arrangements. This proactive approach eases the burden on their loved ones, sparing them from difficult decisions during challenging periods.

According to Krause, there is also a crucial benefit in incorporating the funeral plan while having these proactive estate planning discussions. Krause says, “By planning proactively, your clients not only secure their legacy but also lay the groundwork for potential Medicaid qualification in the future.” In essence, proactive planning can help avoid a future crisis and still help the client qualify for Medicaid if necessary. He adds, “Thoughtful funeral preparation will empower them to navigate life’s uncertainties with confidence, ensuring both financial security and peace of mind for themselves and their loved ones.”

Conclusion

For attorneys, basic funeral planning extends far beyond merely drafting legal documents—it’s about accompanying your clients through one of life’s most poignant passages with heartfelt compassion and unwavering expertise. Moreover, it presents an occasion to forge deeper connections with clients and fellow local professionals, offering a caliber of service that distinguishes you from other estate-planning and elder law practitioners. You have the power to redefine the essence of comprehensive care for your clients, ensuring that their ultimate desires are cherished with utmost dignity and profound respect.