In New York, you may name the person who will carry out your funeral arrangements. You can also provide detailed instructions about your final wishes and set aside funds to cover your funeral expenses, including the costs of burial or cremation.
New York law determines who can make decisions about funerals and body disposition -- that is, burial or cremation -- after someone dies. This right and responsibility goes to the following people, in order:
If members of the same class disagree about the disposition of your body, a court must resolve the dispute. (N.Y. Public Health Law § 4201(8).) To avoid such an outcome, it’s wise to name a decision maker in advance.
Appointing your decision maker. To name someone to carry out your final wishes, you need only write down what you want, then date and sign the document in front of two adult witnesses. To do this, you may use the form provided in N.Y. Public Health Law § 4201(3) or you may create your own form.
Making a health care proxy. One smart way to name a representative to handle your funeral plans is to make a New York health care proxy. In your document, you can give your health care agent explicit power to carry out your final arrangements. This saves the trouble of making separate documents for health care decisions and final wishes.
For information about making a health care proxy, see New York Living Wills and Health Care Proxies.
To make a New York health care proxy that appoints your health care agent to carry out your final plans, you can use Nolo’s Quicken WillMaker Plus software.
If you’re in the military. If you are in the military, you may name the person who will carry out your final wishes in the Record of Emergency Data provided by the Department of Defense.
The most recent statistics from the National Funeral Directors Association put the average cost of a funeral at more than $7,000. This figure doesn’t cover many common expenses such as cemetery costs, markers, flowers, or obituaries. For many people, after a house and a car, funeral goods and services are the most expensive thing they’ll ever buy. It’s smart to make a plan to pay for these costs.
You have two basic options for covering your funeral expenses, including the costs of burial or cremation. You can:
If you don’t do either of these things, your survivors must cover the costs of your funeral arrangements.
Paying in advance. If you want to pay for your funeral arrangements ahead of time, make sure you’re dealing with a reputable funeral establishment and clearly document any plans you make, so your survivors can easily carry them out. Though the law requires providers of funeral goods and services to carefully manage your funds (see, for example, N.Y. General Business Law § 453), abuses do happen. What’s more, if a funeral establishment goes out of business, your careful planning may be lost.
For more information, see The Prepaid Funeral and Its Perils.
Setting aside funds. The safest and easiest way to cover the costs of your final arrangements is to estimate costs and tuck away the funds in an easily accessible, interest-earning bank account. You can designate a beneficiary who can claim the funds immediately after your death. Make sure the beneficiary understands what the money is for, however, and that you trust him or her completely, because the beneficiary is under no legal obligation to use the funds for your final arrangements.
For more information about setting up an account to cover the costs of your final arrangements, see Payable-on-Death (POD) Accounts: The Basics.
Letting your survivors know what kind of funeral arrangements you envision -- including your wishes for ceremonies and whether you want to be buried or cremated -- will save them the difficulty of making these decisions during an emotional and stressful time. You can include your detailed wishes with the document that names the representative who will oversee your plans.
If you leave written, signed instructions about body disposition and funeral arrangements, the person in charge of your remains is legally required to follow those directions to the extent that they are “lawful and practicable.” This includes considering the financial condition of your estate or other resources made available to cover final costs. (N.Y. Public Health Law § 4201(2)(c).)
Nolo offers several tools to help you document your wishes for final arrangements. Each one walks you step-by-step through the process, so you won’t miss any important issues.
While there are many ways to write down your wishes for final arrangements and make them clear, here’s a firm piece of advice to follow: Don’t put them in your will. Your will may not be read until weeks after your death -- far too late to help your survivors. It’s better to prepare a separate document.
Store your final arrangements paperwork in a safe place and be sure your loved ones know where to look when the time comes. It may be helpful to make copies and tell them where to find the originals when they’re needed. If you do so, be sure to keep a list of everyone with copies, in case you need to get them back and change them later.
To find links to all the laws covering funeral arrangements in New York, including consumer protection information, see the New York Board of Funeral Directing.
To learn more about making your final arrangements, see Getting Your Affairs in Order on Nolo.com.
For details on the rules that control disposing of remains in New York, see Burial and Cremation Laws in New York.