New York Executor or Administrator May Have Rights Regarding The Decedent’s Remains

Administrators and Executors in New York, sometimes referred to as estate fiduciaries, have many powers and responsibilities. The New York Probate Lawyer Blog has discussed many of these aspects of estate settlement including the identification and collection of a decedent’s assets and the payment of expenses, debts and taxes.

Reference has also been made previously to the common situation that occurs upon a person’s death when decisions need to be made concerning burial and funeral arrangements. When preparing a Last Will, a person can set forth provisions that direct the manner in which he or she is to be buried. For example, a Last Will can state that the person wants to be cremated or to be buried in particular ceremonial manner. Although such directions in a Last Will can be enforced, they are problematic since a Will may not be looked at or even located until after a person’s funeral and burial take place. Moreover, the validity of a Will and the appointment of an estate fiduciary may not occur until many weeks or months after death.

When discussing burial issues with clients, I typically suggest that a good estate plan includes a pre-death discussion of all funeral and burial desires and arrangements with the close family members or friends who would be most likely to make certain that the decedent’s instructions are followed. However, disputes can and do arise regarding the control of a decedent’s remains and its disposition. Section 4201 of the New York Public Health Law attempts to limit such disputes by providing a list of the individuals who have priority to control the disposing of a person’s remains. First and foremost, the statute provides that priority is given to a person who is named in a writing that is signed as provided for by the statute. Absent such designation, a spouse or domestic partner and surviving children are given primary authority. The statute also provides in paragraph 2(a)(viii) that “a duly appointed fiduciary of the estate of the decedent” may control the disposition of remains.

Many different controversies can arise concerning a decedent’s remains. In a recent case, Freiman v. County of Nassau, decided by the Hon. Thomas Feinman (Supreme Court, Nassau County) on September 23, 2011 and reported in the New York Law Journal on September 30, 2011, the Executor of an estate sued the Nassau County Medical Examiner (“ME”) claiming that the ME performed an autopsy without consent from the Executor and contrary to Public Health Law Section 4210. The Court dismissed the case finding that the limited extract of a blood sample was not an autopsy and was performed with consent.

As shown by the Freiman case, disputes regarding a decedent not only involve such common proceedings as Will Contests and kinship disputes, but can relate to events occurring immediately upon death involving the disposition and handling of a decedent’s remains.

New York Probate Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Queens. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

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