Appointment of a NJ Funeral Representative

Funeral Representative

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In 2019, the State of New Jersey quietly updated the law with respect to the appointment of a Funeral Representative. Under the old law, in order to designate a Funeral Representative, the only way to do so was by inserting a provision in your Will.  The new law allows a person to designate a Funeral Representative using a Form that has been approved by the NJ Cemetery Board.  This form can then be taken to the appropriate funeral parlor or cemetery so that arrangements can be made.

What is a Funeral Representative?

A Funeral Representative is a person that you can designate to control how your remains will be disposed of on death.  Basically, the Funeral Representative is the person with legal authority to determine IF you are buried, cremated, disinterred, etc.  This is also the person to determine WHERE you are buried or where your ashes should be placed.

When is it important to nominate a Funeral Representative?

It is particularly important to nominate a Funeral Representative if:

  1. You do not want your next of kin making funeral or burial arrangements for you. This is often true if you are estranged from your family and would like a friend to make your arrangements;
  2. You do not have any next of kin;
  3. Your next of kin do not get along with each other;
  4. You are in a blended family (i.e. if you are married, but have children from a previous relationship); or
  5. You do not think your next of kin will respect your funeral or burial wishes. For example, perhaps your family wishes you to be buried, but you would rather be cremated.

What is on the NJ Form to Appoint a Funeral Agent?

The form allows you to appoint a Funeral Representative, who will have sole authority to make decisions regarding your funeral and the final disposition of your remains.  The form does provide a space for you to state your wishes for both arrangements.  Once you execute the form, any other appointment of a Funeral Representative you have previously made is revoked.  Execution of the form is similar to a Will, in that you need two witnesses and a Notary.  It is interesting to note that you may not appoint an owner, employee, or representative of the funeral home, cemetery, or crematory that you have chosen or will choose to provide goods or services as your Funeral Representative, unless they are a relative.  

Why choose the Form over a Will?

The problem nominating an Agent in your Will is that in NJ you cannot probate your Will until ten days after a person has died.  Thus, the Will may not get read until after the funeral arrangements have been made.  The Form solves this problem by instructing that copies should immediately be given to relevant people such as the named Funeral Representative, the funeral home, cemetery or crematory, family members, estate attorney, etc.  (I have heard that many funeral parlors will rely on an unprobated Will, but if the family fights about it, they will not want to get involved.)

Since the law is new though, I am unaware if the form will be accepted outside of New Jersey. Accordingly, if you are thinking to move outside of New Jersey, you may wish to still add your provisions into your Will.

What happens if you don’t name a Funeral Representative?

If you don’t name a Funeral Representative, state laws dictate who controls how your remains will be disposed of.  In New Jersey, this is the order for who has control is as follows:

  1. The surviving spouse of the decedent or the surviving civil union or domestic partner.
  2. A majority of the surviving adult children of the decedent.
  3. The surviving parent or parents of the decedent.
  4. A majority of the brothers and sisters of the decedent.
  5. Other next of kin of the decedent according to the degree of consanguinity.
  6. If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent

Obviously if a court can dictate otherwise.

Where can the updated law be found?

The new statute can be found at N.J.S.A. 45:27-22. The form is officially called an “Appointment of Agent to Control the Funeral and Disposition of Remains“.

Thanks to Andrew M. Lee for helping me to update this article.

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