Who Determines What Happens to Me After I Die?

Death is not a subject that many people like to think about.  This one of the biggest hurdles many have in preparing an estate plan, just thinking of the fact that we are mortal can cause us to delay the discussion.  Once the planning begins, one topic seems to come up beside where all of your assets go.  What happens to me?

As there can be disputes regarding cremation or where the final resting place may be for a loved one, having some direction is helpful for the family.  In Illinois, there is a statute named the "Disposition of Remains Act" 755 ILCS 65.  This act provides that an individual can direct the control of their remains via written directions as long as they satisfy the requirements of the Act.  If a person does not designate an individual, the Act provides for an order of who would have the right to control and make decisions regarding the remains:

1. The person designated in a written instrument pursuant to the Act;
2. Any person serving as executor or legal representative of the decedent's estate and acting according to the decedent's written instructions contained in the decedent's will; 
3. The individual who was the spouse of the decedent at the time of the decedent's death;
4. The sole surviving competent adult child fo the decedent; or if there is more than one surviving competent adult children of the decedent, the majority of the surviving competent adult children;
5. The surviving competent parents of the decedent;
6. The surviving competent adult person or persons respectively in the next degree s of kindred or, if there is more than one surviving competent adult person of the same degree of kindred, the majority of those persons;
7. Any recognized religious, civic, community, or fraternal organization willing to assume legal and financial responsibility;
8. In the case of individuals who have donated their bodies to science, or whose death occurred in a nursing home or other private institution and the institution is charged with making arrangements for the final disposition of the decedent, a representative of the institution;
9. Any other person or organization that is willing to assume legal and financial responsibility.

As you can see, the decision may be different from what you intended depending on your circumstances and if you haven't taken steps to declare your wishes in a written document.  One option is to utilize the statutory form known as the Disposition of Remains Form that is cited under Section 10 of the Act or include your wishes in your Will.

Another option is to preplan and/or prepay your funeral and enter into an agreement with a funeral home.  This can help ensure your wishes are followed for your funeral and also alleviate any concern regarding funeral costs that may be placed on loved ones. 

If you have questions regarding your estate plan, please feel free to contact Glick and Trostin, LLC at 312-346-8258.

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