As we age, and enter each new year, our thoughts sometimes turn to planning for those we are close to, after we have walked on. Usually, we want to make things as easy for them as we can.
We should each have a Last Will & Testament, to direct and express what we would like to be done with our assets and personal effects. Depending on the circumstances and goals of each individual or couple, an estate planning trust may be in order.
In addition to those central documents, you should leave some lists for your executor or trustee. At Rosi & Gardner, we provide our estate planning clients with templates to guide them, listing things like life and health insurance policies, bank and financial accounts and investments, real estate that you own, and funeral arrangements. If you engage with social media, you should consider listing your accounts and passwords (or at least your master password manager credentials) for your executor. Facebook even allows you to name a “Legacy Contact” to manage your Profile including converting it into a “Memorial” account (see sidebar).
Have you purchased a cemetery lot? If so, you should let your executor/trustee know about that. Will there be any ongoing maintenance, fees, or transfer of ownership? Will your executor face any obstacles, with the cemetery or its rules, in carrying out your burial instructions?
An interesting Michigan case, in the late sixties, brought Constitutional rights to bear against a Flint municipal cemetery’s rules. In Spencer v Flint Memorial Park Association,1 Mr. Spencer had purchased a burial plot, in the Flint Memorial Park Cemetery, operated by the Flint Memorial Park Association. When the owner of a plot, Mr. Spencer, sought to inter the remains of an African American there, the Association asserted that he could not do so, because the restrictive covenant of the cemetery provided:
In instance shall the cemetery be utilized for the burial of dead bodies of other than the human race and of the Caucasian race only, or of the ashes thereof.
Mr. Spencer, himself African American, challenged the rule, and the trial court ruled in favor of Mr. Spencer. The trial Court’s ruling and opinion was endorsed by the Court of Appeals of Michigan:
This court is now being asked to pass on the question of whether a cemetery association may refuse to permit an owner of a lot the right to bury a Negro in that lot. In a sense, it seems highly grotesque to spend such time and legal effort in considering the rights of dead soulless bodies when we have not as a society yet secured full rights for the living.
The appellate court agreed that such a restriction violates the Fourteenth Amendment to the United States Constitution, specifically the Constitutional provision for equal protection of the law, and ruled in favor of Mr. Spencer.
For your planning considerations, you may want to familiarize yourself (and give notes to your executor/trustee) with the rules maintenance structure of the cemetery where you have purchased a plot. For some cemeteries, like the one involved in the Flint case above, the purchase of a “plot” is simply buying the right to inter your remains there (sepulture), while the the association or the city itself retains ownership of the land along with maintenance obligations, etc. In other cemeteries, often smaller or more rural locales, you may actually be purchasing the land when you buy a cemetery lot.
Either way, this is information that you should share and discuss with the person you are naming, within your estate planning documents, to wrap up your affairs. Include this information, along with the names of your accountant, attorney, and financial advisor, and you will be doing a service to those you leave behind.
Sidebar (Doesn’t have to be on the blog but it could be)
From Facebook: How to Add a “Legacy Contact” for Your Main Profile
From your main profile, click your profile photo in the top right of Facebook.
Select Settings & Privacy, then click Settings.
Below General Profile Settings, click Memorialization Settings.
Type in a friend’s name in Choose a friend and click Add.
To let your friend know they’re now your legacy contact, click Send.
Note: This can be a relatively easy starting point for discussion of your wishes and directions, if this person is a family member or your executor/trustee.
Rosi & Gardner, P.C.
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