Jan Neal Law Firm, LLC

Alabama Estate, Elder and Special Needs Law


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Planning for Burial/Cremation

Alabama allows an individual to prepare an affidavit appointing an agent to deal with disposition of his or her remains at death. This can be a useful document to have when there is the potential for disputes in a blended family concerning where someone should be buried or whether to bury or cremate the remains.

I have written about this affidavit previously on this blog (see https://janneallaw.com/2017/01/06/appointing-an-agent-for-disposal-of-remains-in-alabama/), but it bears repeating due to a development I have seen in recent years.

Often unmarried significant others are making burial/cremation arrangements for a partner, and it comes as a surprise to them to learn that the funeral home will not accept the instructions of the unmarried partner to cremate. Instead the instruction must come from the next of kin. This can be especially problematic when there are estranged children, making the process even more stressful than it already is.

To avoid this problem, when preparing estate planning documents, it is a good idea to have an affidavit prepared or included in your will giving the person of your choice, especially an unmarried partner, the authority to make arrangements in the manner you wish, to include cremation.


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Publication on Planning for Death

No one wants to plan for it, but death is inevitable. To be sure your loved ones are protected and your assets pass as you wish, you need to understand asset titling and the probate process. This publication is Alabama specific and provides an overview of the ways property can be passed at death. This document can be read online or downloaded and printed. It will remain available in the Publications at this web site.


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Publication on Advance Directives Available for Download

Power of attorney

At the top of this page you will see a link to our Publications. There you will find an e-book recently published, Guide to Alabama Advance Directives. It can be downloaded and printed or read online. It explains the different ways a person can become an agent for another in Alabama and how to evaluate which document you may need. This e-book will remain available at Publications but is being posted here.


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Appointing an Agent for Disposal of Remains in Alabama

It is interesting that people create wills routinely to dispose of their property after death, but seldom consider documenting their desires for burial, cremation or other ceremonial issues.  When prepaid burial plans are not purchased, next of kin usually make those decisions.  But what about the blended family situation where there are children, step-children and later in life spouses?  Each person needs to ask who he or she would want making those arrangements.

Often a later in life marriage is entered with an understanding between the parties that each will be buried beside their first spouse.  Usually that presents no problem, but sometimes over time the wishes of individual members of the blended family change.  Documentation of individual choices is useful in those situations to prevent disputes among the surviving family members.

Alabama law allows the inclusion of burial or cremation wishes in a last will and testament, but such arrangements have limited practical value when considering the immediate need to make arrangements for disposition.  Sometimes the will is not located until weeks or months following death.

Of perhaps more use is an affidavit permitted by Alabama Code § 34-13-11 which allows a person to appoint an adult to be the authorizing agent who can control the location and manner of disposition.  That document will control unless a person dies while on active duty in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard, whereupon the person listed on the emergency data for the Department of Defense will have authority to control the disposition of remains.

While I do not normally provide form documents, the affidavit authorized under Code of Alabama § 34-13-11 is very simple and straightforward, and I am providing here a copy of the statutory form:

                                    Affidavit Concerning Disposition of my Remains

 

State of Alabama

County of _______________

I, (name) ____________________ designate (person selected) __________________ to control the disposition of my remains upon my death. I

__ have

__ have not

attached specific directions concerning the disposition of my remains. If specific directions are attached, the designee shall substantially comply with those directions, provided the directions are lawful and there are sufficient resources in my estate to carry out those directions.

Subscribed and sworn to before me this __ day of the month of ___________ in the year _______.

____________________________ (signature of person creating the affidavit)

______________________________ (signature of notary public)”

Without an affidavit the following surviving people, listed in priority, will have the authority to make burial arrangement:

  1. The spouse,
  2. A majority of the decedent’s children,
  3. The decedent’s parents,
  4. A majority of the decedent’s siblings,
  5. The decedent’s grandparents,
  6. The decedent’s legal guardian at the time of his or her death,
  7. The Personal Representative (executor) of the decedent’s estate,
  8. The next of kin for inheritance purposes,
  9. A public officer, administrator, or employee of the government; or
  10. Any person willing to assume the responsibility, in the absence of all of the people listed above.

It is not a bad idea to think about what you want, who you want to make arrangements and prepare an Affidavit Concerning Disposition of Remains as part of estate planning.  You can add additional instructions to the affidavit while designating an agent and rest assured your wishes will be followed.