Years ago, I had a potential client call me in a panic.  Apparently their uncle had written instruction into the uncle’s will that upon the uncle’s death, he wanted to be cremated and have his ashes scattered on the grounds of the Denver Botanic Gardens.  The problem was that the Denver Botanic Gardens do not allow ashes to be scattered on the premises, and my potential client feared that not exactly following the requested scattering of ashes would result in some sort of terrible consequences.  I am not entirely sure if the potential client thought that there was some sort of “estate planning police” that would come and take the potential client away, or if the potential client thought there would be some sort of dire financial consequences–like a fine for not carrying out the instructions, but then I let them know it wasn’t going to be quite that terrible.

In fact, I let the person know that there likely wouldn’t be much of a problem, as the instructions in the will were not really going to be enforceable anyhow.  Since it is illegal to spread ashes on the grounds of the Denver Botanic Gardens, the person would have been in more trouble for carrying out the instructions than ignoring them.  Even though the instructions were in the will, the instruction did not overcome or overrule the Denver  Botanic Gardens rule against spreading ashes on their grounds.  While I assured this person they were not going to jail for failing to spread ashes in a prohibited place, I did get a bit of a laugh from the interaction.  I do know lots of people want to prepare funeral or burial instructions, and many want to do so at the same time as preparing an estate plan.  That makes sense to do because both things are part of planning for your death, but I also can tell you that you likely don’t need to, or want to, include your funeral and burial plans inside of your estate planning documents.

In general, instruction in a will should be followed, and can be enforced by the courts, but instruction in a will doesn’t override other laws, like prohibitions against spreading ashes in certain places (like the Denver Botanical Gardens!).  And, in general, inside a will or trust is not the most desirable place to put funeral or burial instructions.  A will or trust is not always the best place to keep burial or funeral instructions for a variety of reasons, including the lack of access to a will or trust or the formalities of a will or trust.  Putting your funeral or burial instructions doesn’t give those instructions more enforceability than preparing such instructions separately.  You can certainly prepare your own burial and funeral instructions, but you don’t need to do so inside a will or trust.

 

Your Will or Trust Is Probably Not the Best Place for Funeral or Burial Instructions

When someone passes away, there is a lot to be done.  Arrangements need to be made to get the body removed from the place of death and transported to a funeral home or other similar place to prepare a body for burial, cremation, or other disposal of the body.  This process can certainly be a trying one, as the people carrying out those types of arrangements are often close relatives of the deceased person, and are usually not in a good mental state.  As a friend, and a leader in my church congregation, I have had the opportunity to assist family members in this process.  I have accompanied bodies during transport, and I have sat with relatives in other cases where the relatives were overwhelmed by the situation and emotion associated with the sad occasion.  I can tell you that one of the last things on a loved one’s mind is what will happen with the assets and how to find a will or trust at that time.

A will or trust may not always be the most easily located document.  

Each year, I will have the families of my clients contact me to let me know their relative has passed away, and they are unable to locate a will or trust of the deceased relative.  I keep copies of the documents I have prepared on file, but I am not always available to quickly get a copy of the documents to the family, and many times the family will contact me after the person who passed on has already been buried.  In that case, finding out the burial instructions from a will after the fact isn’t very helpful.  Since a will or trust may not be the first thing to be located or the first concern, it is often better to have your burial and funeral instruction prepared separately than those particular documents.

 

Wills and Trust May Be More Formal Than Necessary

Of course, you can include your funeral and burial instructions in your will or trust, but a will or trust could be more formal than necessary.  A will or trust has specific requirements to prepare and to change, and the formal procedures to change a will or trust should be followed to change the contents of a will or trust.  If all you want to do is change your mind about being buried, or cremated, or have a happy celebration of life type party, instead of a sad funeral, you may not want to change your preferences according to the formal rules and procedures of changing a will or trust.  Instead, if you prepare a separate document with instructions for burial or a funeral, then the separate document is not constrained by the formalities of changing a will or trust.

 

Funeral and Burial Instructions Don’t Need to Be as Formal as a Will or Trust

The law regarding wills and trusts has developed over the past decades and centuries, and the law has been fairly stable for the past decades.  Some changes to the taxation of trusts or estates have changed rapidly over the past several years, but the laws regarding creating, signing, and carrying out distribution of assets from a will or trust have been well developed and formalized quite well in the law over time.  The formal requirements of a will or trust need to be followed to ensure that assets are distributed to the correct people in the correct time frame and manner.

Funeral and burial instructions do not require such formalities.  You can pre-plan your funeral with a funeral home, or on your own, and you can do so without needing to have the courts or government involved in any way more than simply following the regulations for disposing of a body.  The government has rules regarding how to dispose of a body in the proper way, and the funeral homes need to follow those rules, but you don’t need to worry too much about those rules in planning your own funeral, unless you try to do something like have you ashes spread in a place that doesn’t allow it – like the Denver Botanical Gardens.

Instead, you can write down your own funeral and burial instructions on a separate document from your will or trust.  You can do this on your own, or the Colorado Bar Association does publish a form that is specifically to address the disposition of last remains, which can be searched out on any major internet search engine.

This form is a suggested template, and funeral or burial instructions don’t need to be formally done on this one form.  You can complete your own funeral or burial instructions.  You can even have them signed, dated, and notarized.  But, putting funeral or burial instructions inside a will or trust doesn’t give a greater force of law or enforceability to the instructions.  

 

You Can Certainly Plan Your Funeral and Burial and Estate at the Same Time

Nothing in what I have said should prevent or dissuade you from planning your funeral and burial instructions.  In fact, I have seen many families who are relieved that their loved ones planned ahead and set up funeral and burial arrangements, so that the survivors did not have to do so.

I am also happy to discuss what someone wants for their funeral or burial instructions while we discuss other aspects of estate planning.  I just encourage people to write their funeral and burial instructions separately from a will or trust and then keep the funeral and burial instructions in a place that can be easily found.  That can be with a will or trust, if you tell your family where to find those documents, or can be somewhere else easier to find for your family.  In any case, when you are planning for your own demise, you can plan your estate to say where your assets should go, and also plan for your burial and funeral.  The burial and funeral planning can happen at the same time, but doesn’t always (or ever?) need to happen in the same document.