Does a Will Cover Funeral Arrangements? What Is Binding and What Isn't

You can write funeral wishes in a will, but it is rarely the best place for them. Some states, such as Texas, tell the people in charge to carry out written directions, including those in a will. Others treat the same words as a request. In every state there is a practical problem: the will is often not found or read until after the funeral has happened.

Do funeral wishes in a will have legal force?

It depends on where you live. There is no single national rule. Each state decides who controls your body and your funeral, and how much weight your own written instructions carry.

Here is how a few states handle it:

• Texas. The statute says you can give directions in a will, a prepaid funeral contract or a signed and acknowledged written instrument. The people otherwise in charge are told to carry them out, as long as the money is there to pay for it. You can also use a statutory form to name an agent.
• Florida. The law ranks the dead person's own written directions first, ahead of relatives.
• New York. A person named in a written instrument comes first. The state form for naming an agent needs signatures from you and the agent, and two adult witnesses.
• California. The law puts a health care agent, then the spouse and other relatives, in a ranked list. It also gives legal weight to certain written instructions left by the person.
• Virginia. You can assign funeral decisions to someone in a signed, notarized writing that the person accepts in writing. A copy must reach the funeral home and cemetery within 48 hours of the funeral home receiving the remains.

State laws change, and they contain details, exceptions and procedures that a summary cannot cover. If your wishes are specific or likely to be challenged, ask an estate attorney in your state.

Why a will is often too slow

Even where a will is respected, timing works against it. Funeral homes usually need decisions within a few days. A will may sit in a lawyer's office, a drawer or a bank box, and it is not always filed with the court right away. The family may not know it exists, or may not know where it is.

The second problem is access. A safe deposit box can be hard to open quickly after a death, depending on the bank and the state. Many people store a will there for safekeeping, which is fine. But if that is the only place your funeral wishes are written, your family may plan the funeral without seeing them.

Who decides if you leave no instructions?

When nothing is written down, state law ranks the people who can decide. The order varies, but it usually runs:

1. Surviving spouse (some states also include a domestic partner)
2. Adult children
3. Parents
4. Adult siblings
5. More distant relatives, and in some states the executor or a court-appointed person

Texas lists the executor after siblings. Florida's list goes from spouse to adult children, parents, adult siblings, adult grandchildren and grandparents. New York's list includes domestic partners and, near the end, a close friend or relative who knows the person's wishes.

This matters most if you are not married or are estranged from relatives. An unmarried partner or a close friend has no automatic right in many states, and a disagreement between relatives of equal rank can end up in court. The guide on funeral planning for an unmarried partner covers that situation, and dying without a will explains what happens to the estate.

What the executor does and doesn't do

The executor you name in your will manages the estate: collecting assets, paying debts and distributing what is left. Paying for the funeral usually comes out of the estate. The executor may also be the same person who arranges the funeral, but that is not automatic. In the Texas list above, for example, the executor ranks below the spouse, children, parents and siblings.

Wishes can only be carried out as far as the money allows. Texas's statute, for example, ties the duty to follow directions to whether funds are available. If you want an elaborate funeral, plan how it will be paid for. See executor funeral responsibilities and when the estate pays for the funeral for how this plays out.

How to make sure your wishes are followed

Use three layers, so that if one fails another still works.

1. Write your wishes in a separate signed document. Cover burial or cremation, the type of service, where, music, readings, who you want to speak, and any religious or cultural requirements. Sign and date it. Some states accept a signed instrument as a legal direction, and even where they don't, it is clear evidence of what you wanted.
2. Name one person to carry them out. In states with a funeral agent form, use it. In others, write the name in your instructions and tell that person. A separate agent is useful if your closest relatives might disagree with you. The guide on appointing a funeral representative explains how.
3. Give copies to the people who need them. That means your agent, your family, your executor and, if you choose, a funeral home. Planning ahead does not mean paying ahead. The Funeral Consumers Alliance suggests you plan your choices without paying a funeral home in advance, and look at a payable-on-death bank account as a safer way to set money aside.

If you want to put everything on one page, see how to tell your family your funeral wishes or use the funeral wishes template.

What about a power of attorney or an advance directive?

These are separate documents with a different job. A power of attorney generally ends when the person dies, so an agent cannot use it to arrange the funeral, sign the funeral home contract or pay bills from your accounts. A health care agent's medical decision-making authority also generally ends at death, although a few states give that agent a say over the body (see below). Your medical directive covers care while you are alive. See power of attorney and funeral arrangements and advance directive vs living will.

In some states, a person you name in a health care directive can also have priority over your body after death. California's ranked list, for example, starts with a health care agent. Check your state's rule, and do not assume that naming a health care agent also covers the funeral.

Special case: military service members

Federal law lets a service member name a person who directs the disposition of their remains. The person is identified on the DD Form 93, and under 10 U.S.C. 1482 that person comes first, regardless of relationship. The spouse and blood relatives follow. If you or a family member is in the military, check that the form is up to date. Veterans who want military honors can read about military honors at a funeral.

Paying for what you ask for

Wishes cost money, and funeral homes must give you prices. The FTC Funeral Rule gives you the right to a General Price List, to choose only the goods and services you want, and to do so when you plan ahead. For a sense of what typical funerals cost and what drives the price, see the average funeral cost breakdown.

What to do next

1. Write one page of funeral wishes, sign it and date it.
2. Choose one person to carry them out, ask them, and give them a copy.
3. Tell your family where the document is, and keep it out of a locked box.
4. Check your state's rules for naming a funeral agent, with an attorney if your family situation is complicated.