By: Justin M. Smigelsky, Esq.
Estate litigation includes, among numerous other potential claims, claims related to funeral arrangements, burial, and disinterment. Most disputes in this regard must be resolved by determining the authorized person to make such decisions. In a recent unpublished decision of the Appellate Division, Old Bridge Funeral Home, LLC v. Pruckowski, et al., the importance of designating a funeral agent in the Last Will and Testament was discussed. The relevant facts of the case were as follows:
- The decedent executed a Last Will and Testament directing the executor to pay her “just debts and funeral expenses.”
- The three children of the decedent were intentionally omitted from the Will.
- Despite funeral arrangements having been made by the executor at a funeral home in Union, the decedent’s children wanted a funeral closer to Old Bridge, where the decedent’s family and friends lived.
- The decedent’s son “booked” the funeral with Old Bridge Funeral Home for $30,789.00, and executed a “Payment Policy.”
- The children executed a contract/promissory note to guarantee payment.
- The funeral home filed suit for breach of contract when payment was not made, naming the children, the executor, and the estate as defendants.
The Appellate Division interpreted, and highlighted the significance of, N.J.S.A. 45:27-22(a) in reaching its decision. Pursuant to the statute, a testator/testatrix may appoint a person in his or her Will to control his or her funeral and disposition of human remains. It is not necessary that the appointed funeral representative be the executor/executrix of the Will, and the designated representative may act prior to the Will being admitted to probate. In the event that the decedent fails to make such a designation, or in the event that he or she died intestate (without a Will), the right to control the funeral and disposition, unless otherwise ordered by the Court, is set forth by statute in the following priority:
- Surviving spouse (unless an active restraining order exists or an intentional killing of the decedent by the surviving spouse has occurred);
- Majority of surviving adult children;
- Surviving parent(s);
- Majority of siblings;
- Other next of kin according to degree of consanguinity; and
- If no known relative, any representative providing written authorization.
As the decedent in Old Bridge Funeral Home, LLC v. Pruckowski, et al. did not designate a funeral agent in her Will, the statutory hierarchy applied – “as the surviving adult children of the decedent, the children had a higher priority right to control the funeral than  the Executor.” Furthermore, the Court reasoned that “nothing in the statute [provides] that the statutory hierarchy shall be modified based on whether the children inherit under the Will.” The Court noted that it is the obligation of an executor to settle and distribute the estate in accordance with the Will and, therefore, to pay funeral expenses; however, the Court was clear that, when a third person makes funeral arrangements for a decedent at the expense of the estate, the expenses incurred must be reasonable. Ultimately, the Appellate Division remanded the matter to the trial court for the sole issue of determining what funeral expenses were reasonable, taking into account any applicable credit for the estate’s settlement with the funeral home.
Because estate and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding burial or disinterment of a loved one, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. – 2017 – All Rights Reserved
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding estate planning, estate administration, or estate litigation, contact the experienced estate attorneys at Timothy J. Little, P.C.
Probate / Estate Practice Areas: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)