Is It Legal to Include Funeral Wishes in a Last Will and Testament? What You Need to Know

The Legal Implications of Funeral Wishes in a Will

Funeral wishes included in a last will and testament are legally binding on Executors, although they are not necessarily composited by the Executor into a plan of activities to be carried out. The Supreme Court of Canada in a 2012 decision (Whitfield v. Whiting, [2012] 2 S.C.R . 445) interpreted the funeral wishes contained within a Last Will and Testament as creating an enforceable contract between an Executor and the deceased, and not the heirs or beneficiaries of the estate. As such, executors must be aware that funeral wishes included in a Last Will and Testament are enforceable by law, whereas funeral wishes expressed orally or in other documents are not enforceable by law.

How are Funeral Wishes in a Last Will and Testament Processed

As mentioned above in the Baton Rouge laws regarding funeral wishes in a will, there are some times when funeral wishes in a will, or funeral directives as they are sometimes called, are not legally binding.
For instance, when people are asked about their funeral wishes, most assume the will controls. However, if there are instructions that conflict with how things are actually done or contain unrealistic provisions, such as the funeral provider being paid with property rather than a payment, it may be improbable that they will be carried out.
With regard to interpretation of funeral wishes, Louisiana law states that the final disposition and funeral wishes must be in writing and that there are no formal restrictions regarding how the request is to be implemented. However, courts may differ in how they interpret or apply Louisiana law to be some situations.
When the will provides for funeral wishes or directives, in writing, the executor has a "duty to carry out the directions of the deceased relating to funeral and burial arrangements." A person authorized to direct a decedent’s funeral has to make sure that they carry them out. Because of these broadly written rules, whether the court will prohibit the executor from carrying out the directives or will allow the executor latitude is very situation dependent.
Often times, the funeral provider will ask the executor to confirm that they have the legal authority to carry out the decedent’s wishes, but the funeral provider may also want proof of these wishes as well. A preneed contract is the most certain way to ensure that your wishes are honored, but having a will with specific funeral wishes could help your executor if there is any fight over the final disposition.
An executor may refuse to follow the funeral wishes of the decedent if the executor has "good cause." However, Louisiana courts seldom define "good cause."
Some of the factors considered by the court include whether the will was dictated to an attorney or witnessed by others; if there are caveats in the will stating that certain people will be responsible for carrying out the orders in the will; and if the funeral wishes were known or acknowledged by the executor before the death of the testator.

Legal Options for Protecting Your Funeral Wishes

Unfortunately, in life many of us leave behind unfinished business, whether something like that overdue note to Grandma or even that first quarter report that has yet to be turned in. That same principle also applies when it comes to deciding what should happen when you die. Many Americans may want to direct their funerals as they see fit but often have not formally put these arrangements in writing or have failed to discuss them with family members. Without fail, at some point funeral wishes will need to be addressed and unfortunately, the potential for family disputes as it relates to honoring specific wishes becomes apparent. The good news is that there are many legal avenues through which you can ensure your funeral is held per your explicit wishes. The most important thing you can do is communicate and at least have these conversations. The options are simply too numerous to mention all of them, however below are just a few examples. Prepaid Funeral Plans, also known as funeral trusts, which are established with a licensed or accredited funeral director or institution, that guarantees your funeral will be held as you would like. Funeral Directives, sometimes called Disposition of Remains, is an advance funeral planning document that lays out specific instructions which are followed when a funeral is held. Funeral Directors are also available to help families plan ahead, make financial preparations for those arrangements, and preserve specific desires. There are also other options which may be unique and specific to your state.

Examples of Common Disputes Concerning a Last Will and Testament’s Funeral Instructions

Those who are favored with the responsibility of being the trustee of a family trust or executor of a will are often entrusted with the important, if not sacred, duties of arranging funerals and other dispositions of the bodies of the deceased.
This process can be arduous but does not have to be contentious. However, disputes can and do arise if the wishes of the decedent are unclear or seem to be in conflict with other wishes he or she expressed about other matters after the will was made.
A common concern of executors is the determination of the decedent’s final place of burial . Frequently, a parent has made specific wishes that a spouse of a son or daughter will be uncomfortable with, and want to oppose. As the decedent’s health status changes, he or she may make alternative arrangements, leaving behind written material that the family finds objectionable. The law is clear that final disposition of bodies generally is the function of the decedent’s spouse or surviving family members, but administrators and trustees should participate whenever possible to agree on a consensus and minimize family strife.

Tips for Including Funeral Wishes in Your Last Will and Testament

If you plan to express your funeral wishes in a will, the best practice is to do so plainly and without conditions. You might say something like, "In the event of my death, I wish that my remains be cremated and my ashes scattered at sea." This is far more useful than saying, "I want my funeral to be simple and without a lot of fanfare," because it does not guide your executor or surviving family. Many people will have a funeral service or some time of recognition, even if it is very small scale, so just saying that you want no fanfare is somewhat ambiguous.
Regardless of the language you use in a will, clearly and effectively communicating your desires to the appropriate family members and friends is extremely important. Doing this in advance of writing the will is typically advisable so that people around you do not have any (or as much as possible) uncertainty about your wishes.

How State Laws Impact Funeral Arrangements

State laws can vary on this subject, and some states provide statutory authority that will affect the disposition of remains. This state direction can come in many forms, including:
Under this latter scenario, in states like Louisiana and Mississippi, these laws may dictate who can make decisions on behalf of a decedent after death, even in the absence of all of the other documentation. In any event, the state rules are likely to play a critical role in determining the resolution of your loved one’s funeral and remain disposition preferences. Laws governing the disposal of dead bodies are designed to assure that remains are properly cared for, and to recognize the legitimate interests of the deceased’s family and the state in the appropriate disposition of the deceased’s remains. These laws usually grant exclusive authority over the disposition of the remains of a decedent to a fiduciary of the decedent’s estate, with a preference for spouse, children, and other next-of-kin and intestacy heirs . If the decedent has died without a will, the next-of-kin of a decedent usually are exclusive actors in determining the appropriate burial of the remains. Most states will require that these next-of-kin sign the authorization to dispose of the remains. Some states have hierarchical "next-of-kin" laws that give the priority to a spouse, with the second priority going to children. Other jurisdictions do not have statutory rules that provide priority to next-of-kin, recognizing instead that family members may have competing or joint rights over the decision of the remains disposition. Some states have statutory exceptions that allow relatives to forgo funeral home/embalmer care for the body of a deceased, and deal directly with the deceased’s family in order to arrange final disposition. Other states provide statutes that grant specific rights to the family members to make decisions for the disposition of a decedent’s funeral and burial. In some states these decisions are made in the absence of clear authority representation. In this latter situation, the family members may argue that they are entitled under state law to make the decisions.