Reed: Who has responsibility for remains in an estate?

Sandra W. Reed
Special to the Reporter

Frederika’s will contained the instructions that her son, Freddie, named as executor, was to “make all arrangements for my funeral expenses.” The will even forbode anyone else in the family to do so.

Sandra Reed

However, when Freddie had done nothing toward setting up a memorial, Frederika’s daughter Jacqueline took over, met with the director of the funeral home, took care of the preparations for the service and paid out of pocket all the bills associated with it. She also arranged for a cremation and a beautiful urn to hold Frederika’s ashes.

Freddie and Jackie had never gotten along all that well, so when Freddie refused to reimburse her from the estate for the money she had put out, she sued him for breach of fiduciary duty as executor. Who won the lawsuit?

Do instructions in the will regarding funeral services govern exclusively?

Under the Texas Health and Safety Code §711.002, the decedent’s instructions in a will governing the disposition of remains have priority over any other. Based on that statute, Freddie took the position that, since Jackie had violated their mother’s wishes set out in the will, she ought to have to personally pay for the funeral and the disposal of the remains. His lawyer thought he had a winning case. He was wrong.

Instructions regarding funeral services do not encompass disposal of remains.

A recent Houston case found that since the will in question only spoke to funeral expenses and didn’t address the disposition of remains, the statute giving priority to the will’s instructions wasn’t covered. The court took the side of the proponent taking Jackie’s position. That meant Freddie had to fork over the dough from the estate to reimburse his sister before dividing the rest of the property in the estate between the two of them as the only heirs.

Lesson learned: If a testator wants to make sure that his or her instructions in the will are given priority under the Health and Safety Code, the instructions must specifically state that the instruction apply to remains. Merely mentioning funeral arrangements is not sufficient.  

Sandra W. Reed practices, Elder Law in Somervell County, which includes handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning.  She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at sreed1247@gmail.com.