Disposition of Remains

The law governing who has a right to determine funeral arrangements and dispose of human remains has always taken a back seat to the law concerning who is entitled to a decedent's assets. Everyone wants the assets, but few people want the burden and expense of a funeral and burial. To clarify the law, Illinois has enacted a Disposition of Remains Act. The Act provides that unless a decedent has left proper written directions to the contrary, the following persons in the order named have the right to control the disposition, including cremation, of the decedent's remains:

1) person designated in a written instrument that meets the requirements of the Act;

2) executor or legal representative of the decedent's estate acting according to direction in decedent's will;

3) spouse;

4) majority of surviving competent adult children;

5) surviving competent parents;

6) majority of surviving competent adult persons in the next degree of kindred; and

7) public officials and institutional personnel in cases of certain indigents and nursing home residents who have appointed the institutions.

The Act provides that any disputes as to who has the controlling right shall be resolved by a court.

The Act states that while the foregoing persons have the right to direct the disposition of remains - they are also liable for the reasonable costs of the disposition. Since the Act went into effect on January 1, 2006 this provision has not yet been interpreted. Does the Act mean the named people are liable for funeral and burial costs regardless of whether or not they agree to act - or only if they do? In any event the costs would still be a priority claim against the decedent's estate.

The Act contains a form that may be used to appoint an agent and successor in charge of the disposition and the form provides that special directions and limitations may be stated. The form does not have to be used, but if written directions are to be given effect they must state the same things as the form and be signed by the decedent, the agent, each successor agent and notarized.

The Act also provides that directions for disposition can be in a will, prepaid funeral or burial contract, or a cremation authorization form complying with the Crematory Regulations Act. The will does not have to be probated in order for the directions to be effective. The directions must be signed by the decedent and notarized.

The act authorizing durable powers of attorney for health care sets forth a form for use which authorizes the agent to dispose of the disabled person's remains in case of death. These provisions are still valid and no notarization is required for a health care power. Some people think the Disposition of Remains Act supersedes the power of attorney legislation on this point, but whether it does or not has not been decided by the courts. Therefore it may be wise to have durable powers of attorney notarized.

The persons who can arrange for funerals and burials can also authorize cremation. After cremation they have the authority to dispose of the cremated remains. The cremated remains must either be placed in a cemetery, grave, vault, niche or scattering area or they can be disposed of in any manner on the private property of a consenting owner.

Donald M. Thompson * 55 W. Monroe #3950; Chicago, IL 60603 - Illinois Probate Lawyers
Ph: 312-782-0844 * Fax: 312-201-1436 * Email: donthompsonlaw@sbcglobal.net