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Determining Who Makes The Funeral Decisions When There's No Will

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When a person dies, someone has to make the funeral arrangements. Sometimes the decedent will name this person in his or her will along with instructions on how he or she wants to be interred. What happens when there is no will or directive, though? Here is how to determine who has the legal right to make decisions about a decedent's funeral arrangements and what to do if there is a dispute.

Next of Kin

According to the law, the next of kin is the decision maker when it comes to handling the funeral arrangements when the deceased person hasn't chosen someone beforehand. Typically, this is the person's closest relative, and there is a hierarchy the legal system uses to determine who that individual is.

The first person on the list is the decedent's spouse or domestic partner. If the person wasn't married or didn't have a legally recognized domestic partner, then the responsibility for interring the decedent falls to the following people in this order:

  • Children
  • Biological or adoptive parents
  • Parent's siblings
  • Grandchildren
  • Grandparents
  • Nieces and nephews
  • Aunts and uncles
  • Great grandchildren
  • Great grandparents
  • Great nieces and nephew
  • First cousins

If no one related to the person by blood or marriage is available, then the decedent's closest friend may assume the responsibility of putting the individual to rest.

When a Dispute Arises

Sometimes a dispute will arise between family members about who should make the funeral decisions, particularly if there are multiple people in the same category (e.g. several children of the deceased), the person who would be responsible is incapacitated in some way, or family members are concerned about the type of service the legal representative will prepare for the decedent.

When there are multiple people in the same category claiming the right to make the funeral arrangements, the right will usually fall to the oldest person in the group (e.g. eldest child). However, if both people are considered equal, they will usually share the responsibility for making the arrangements.

If the person who has the right to make the funeral arrangements is incapacitated or unable to perform the duties for some reason, then the responsibility will fall to the next person in line. It's important to make the distinction between whether the person is temporarily or permanently incapacitated. Someone who is only temporarily incapable of making the arrangements may come around after a short period of time, and that person should be given as much time as possible to heal.

At the end of the day, the best way to handle a dispute in this situation is to consider what the decedent would have wanted. Many times, approaching the problem from this mind set can make the choice clear.

For more information about this issue or help arranging a funeral, contact a funeral home like Ryan-Parke Funeral Home.