Funeral and Disposition Representative – In Re: Estate of Travers

A recent decision from the Morris County Chancery Division, Probate Part, serves as an important reminder to not only think about the final disposition of your remains, but to communicate those thoughts to the significant people in your life. In an unpublished opinion, In the Matter of the Estate of John E. Travers, Jr. (New Jersey Superior Court, Morris County, Docket No. P-2253-2017, 2/19/2019) (hereinafter “Travers”), the Court addressed the question of who may control the disposition of a decedent’s remains when the decedent has not expressed his intentions in this regard. The Travers case contained no significant legal principles, nor did it break new ground in the estate planning field. It did, however, highlight the importance of specifying the person who should be in charge of your final arrangements and the disposition of your remains.

In this case, Mr. Travers was 22, single and had no children. He had no will and had made no direction regarding his funeral or the disposition of his remains. He was survived by his mother and father, his closest blood relations. His parents were divorced. His father felt strongly that Mr. Travers should be buried, and his mother thought he should be cremated. This disagreement took them to the Superior Court of New Jersey, where the Chancery Judge was called upon to decide the question.

The Court began its inquiry with an examination of the New Jersey law that allows for the appointment of a funeral and disposition representative. New Jersey Statute 45:27-22 provides that a decedent may specify who is to be entrusted with funeral arrangements and the disposition of bodily remains. See N.J.S. 45:27-22.a. This direction must be in a will. Id. If the decedent has not left a will that includes such an appointment, the statute sets forth the order of priority of the persons entitled to control the funeral and the disposition of remains as follows: (1) the surviving spouse or civil union or domestic partner; (2) a majority of the surviving adult children; (3) the surviving parent or parents; (4) a majority of the brothers and sisters; (5) other next of kin according to the degree of relationship with the decedent; and (6) if no next of kin, any other person acting on a decedent’s behalf. Id.

As noted, Mr. Travers did not have a will, and had no spouse and no children. Therefore, his parents had equal statutory standing to make decisions about his funeral and the disposition of his remains. What happens in situations where, as here, people of equal standing are in stark disagreement, and each of them seeks to control the disposition of the remains? The Court in Travers attempted to ascertain the decedent’s probable intent with respect to this question. Although the decedent did not leave a will, the Court noted four factors to be considered in resolving a dispute over funeral arrangements or dispositions of remains:

1. The decedent’s wishes as expressed through communications with another, to the extent decedent made such communications;
2. The person with a closer relationship with the decedent, who is in a better position to determine the decedent’s desires and expectations;
3. The person more likely to follow the decedent’s religious beliefs and/or cultural practices; and
4. The person to be appointed administrator of the estate, thus being in the position of assessing the estate’s ability to pay expenses, or arranging for alternative funding to do so.
   Id.

During the testimony of the parties, the Court was persuaded the father had the closer relationship with his son and that he appeared to have a better understanding of the son’s likely wishes, based on several factors outlined in the case. The Court, therefore, granted the father’s petition to control the disposition of his son’s remains.

In the majority of traditional family situations, the written appointment of a funeral and disposition representative may not be necessary. For example, in the case of a married couple, the spouse will be given priority. In the case of a parent with no spouse whose children all agree, a majority of the children will decide. However, in those cases where families are not all “on the same page” with respect to the funeral and the disposition of a decedent’s remains, it is well worth the time and effort to leave a will clearly indicating the decedent’s wishes in this regard. Absent a will, a written statement signed and dated by the decedent (and ideally, witnessed by disinterested parties), may stand as evidence of the decedent’s intent, to which New Jersey courts will accord great weight.

In Travers, a great deal of emotional distress was caused, and significant expenses were incurred, to resolve a situation that could have been taken care of easily by the decedent with an appropriate designation in a will.