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I am the Executor of the will. My mother has stated in her will that her remaining money would go towards having a cremation. I am keen to take my brother to court because I want to honor my mother's wishes. My second plan is to have a burial service and sue my brother for the additional costs. I'm in a dilemma. If anyone has dealt with something similar or could give some advice that would be greatly appreciated!

Glad it worked out.
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Update: I finally got to honor my mother's wishes and have her cremated. It's a happy sad feeling. In regards to the court situation, my brother was served with summons. I worked with a trust and estate lawyer and they filed a petition for determination of authority. In the end, the judge ruled in our favor. I was able to show the crematorium the court order and have my mother cremated. I'm glad this situation is over. Thank you all for your replies.
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Lexi thank you for coming back to let us know how it worked out.

I cannot imagine how hard it was to deal with the extra stress of having to get a court order just to follow your mother's wishes.
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Lexi, have you gotten anywhere with Moms burial.
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My MIL passed away two years ago and wanted to be cremated. Even though her wishes were her will, in the state of Georgia, the law is that the majority of her children had to agree to it. It wasn’t a problem since they agreed about it. What I found amusing is that my husband and his brother had to initial that they both understood that cremation can’t be reversed.
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JoAnn29 Feb 3, 2021
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Boy, some weird laws out there. 2 cent suggesting to override the persons wishes to keep the family happy. I guess the person who passes won't know anyway. Maples, that the spouse has to OK it, how antiquated is that law?

I so hate that someone goes thru the expense of getting a Will done and someone feels they can contest it. Right or wrong the persons final wishes should be honored. Children have no rights
to what parents have accumulated in their lifetime. If they want to leave it to the cat, so be it. Now we have grandchildren feeling they have rights to their grandparents money, car, etc. So much greed. My one daughter is not married, no children. She is leaving her money to charity. As her closest relative, I guess her sister could contest. Maybe even I could but thats what my daughter wants.
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lexicoleman Mar 20, 2021
Exactly! A person's final wishes should be honored. I'm so glad this situation is over! I can't even imagine what crazy stuff is happening with other families pertaining to their trust and estate.
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I have read this post a couple times.

Here in BC cremation is the norm, not burial, I have never heard of a family squabbling over it.

I am sorry your brother is obstructing Mum's final wishes.

I think this is a great example of why it is important to play and pay for a funeral ahead of time. That way the funeral home has on file the wishes of the deceased.

I am surprised about the 48 hour rule in Virginia. If someone died on a Friday night many people would not have access to the Will prior to Monday at the very earliest.

I am thankful Mum has everything planned and paid for. I am her executrix and all her paperwork is up to date. Dad has not planned anything, but that is my brother's problem as his Executor.
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my2cents Feb 5, 2021
In the US, it has become more common but you still have the steadfast who stand on both sides of that decision. They are absolute in their decision and most will tell you if they are involved in the planning for someone else, they could not cremate. Others seem to view burial as unnecessary expense or indicate they don't really care what happens to the body after death.

I have relatives in California who have opted for cremation for many years, so not so sure if it's a regional thing in the US or not.
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Sympathies for your loss.

Online has information - if possible, I'd ask the atty who drew up the will for advice.

One site is https://www.nolo.com/legal-encyclopedia/virginia-home-funeral-laws.html which says:

"Who Has the Right to Make Funeral Arrangements in Virginia?
Virginia law determines who has the right to make final decisions about a person’s body and funeral services. This right and responsibility goes either to a person you name in a signed, notarized document or your next of kin."

The will is presumably signed and notarized! Link lists next of kin in order of authority, and second in line is adult children. However I'd think the will, if signed and notarized would suffice, BUT in VA at least, the following does indicate a time window for presenting this document.

The link above lists VA code links, one of which is:
https://law.lis.virginia.gov/vacode/title54.1/chapter28/section54.1-2825/

What I read is you are designated, but it also states a copy of the document should be provided within 48 hours after they receive your mom. It seems to say someone else can pay costs for other arrangements, so long as YOU, the designated appointee, agree! So, if he's willing to pay, and you agree, have at it. If you object, you'll likely have to seek legal assistance, which can take time.

I had to search the other link (clicking it fails) - see this (covers contention):
https://law.lis.virginia.gov/vacode/title54.1/chapter28/section54.1-2807.01/

If it's been over 48 hours and you didn't present a copy of the will, then it appears from this code you'd have to take this to probate.

If you DID present a copy of the will within the time window, I'd want to know what their problem is! Print copies of the codes from the pages above and bring them with you! If they accepted the document and it was on time, they should not be balking. Perhaps if the will hasn't gone through probate, they can't accept it? I had the only original copy and had to send it to the probate court with application to be appointed and include the DC.

For others, check your own state laws. There were funeral sites that gave some hints about what some states cover. I haven't checked our state, but will. Mom had a burial plan all set up and paid for. They did send the authorization form to me via email, and I'm the only one who signed (I have 2 brothers, and although I'm exec, the will hasn't gone through enough probate yet to appoint me - needed for refunds, etc that I can't cash or deposit without estate account! Even so, I don't think the will covers burial plans.) Perhaps because mom already signed for her "burial" plans, they just needed an adult child to sign (or someone) as the spouse isn't living?

Several of the sites I checked did indicate that you can sign your own cremation authorization before death (clearly you can't sign it after!!) and they keep it on file for when the time comes. This can get around sticky situations like this or scenarios where there are no close living relatives.

Continuing search, interesting that for my home state (same state mom was living in) says:
"If there is no spouse and there are multiple adult children, signatures from the majority or all will be required."
Yet only I signed it. Hmmm, perhaps because she had the burial/cremation preplanned? But, that said, she was living in MA before, did the pre-planning there and the funeral home is there. They state:

"Do all siblings have to sign off on c[remation in Massachusetts?
Either the consent of the surviving spouse, or, if there is none, of all adult children is generally required for a cremation in the Commonwealth. Massachusetts regulations state that if a pre-need contract is in force, then the funeral director shall obey it, including cremation."

Note it also says all adult children, BUT the "pre-need" contract exists, which it does, perhaps they just need anyone's John Hancock!

Word to all: I didn't read all hits, but it appears this may be a universal r'qmnt
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lexicoleman Mar 20, 2021
Thank you for this! After my mother passed, I was frantically searching the internet for what to do next. I showed the will to the crematorium however, they needed a court order. I talked with a few trust and estate lawyers and found one to help with my case. I had a petition for determination of authority and the judge ruled in our favor.
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lexicoleman, had your Mother already passed, if so my hearthfelt sympathy. As we all know, time is of the essence here. The funeral home can hold your Mom but there is a daily cost for holding. Going to Court could take weeks if not longer, especially with the covid, court time is limited.

If your Mom is still alive, could she tell her son her wishes, or is that something she can no longer do?

You need to hold by your Mom's wishes.
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lexicoleman Mar 20, 2021
Oh, I went to court. I had no problem with time. I viewed different funeral homes in the area as a plan b if the judge didn't rule in my favor but, the judge did rule in my favor. My mom passed in late January and was stored in the crematorium until this past week.

I'm glad I got to honor my mother's wishes.
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In Texas, it is the law that the spouse must agree to the cremation, unless there is a written directive from the deceased stating their wishes. If there is no spouse, then all children must give permission. When my stepmother died, I had to find a second cousin in Australia to give permission for the cremation, because my sisters and I were not blood relatives. Google your state's regulations on cremation. If the instructions in the will are sufficient, your brother can go pound sand. You can have your sweet mother cremated.
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lexicoleman Mar 20, 2021
For Virginia law, I had to get a petition for determination of authority (the judge ruled in my favor). Then, I showed the crematorium the court order and they finally began the cremation process. My brother is probably pounding sand now.
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Why not ASK your brother first if he is willing to pay the difference in what mom stipulated money for (cremation) and what he wants.

If there is enough money for burial, why not avoid the lawsuit against brother (who may or may not have any money to pay you anyway) and just do a simple burial. It avoids the hard feelings that will last for many, many years and, more important, the legal expense for a suit. You'd probably end up spending the same amount anyway AND the irreparable damage done within the family. Consider that some people just can't deal with having a loved one 'burned' up.
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lexicoleman Mar 20, 2021
Because I know my brother wasn't going to pay for anything (burial or cremation). Initially, when I wrote my OP, I wasn't sure what legal action to take hence why I first said 'sue.' My brother has the money he just didn't want to pay. My mother means more to mean than my brother so I don't care about hurting his feelings. I had a petition for determination of authority and the judge ruled in my favor. She's 'burnt' up now and that's what she would've wanted.
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The first time I read this I thought "who cares what state you are ceremated in. Ashes can be sent anywhere." Then I realize brother doesn't want Mom cremated. Well, that is not his decision. As said, I would tell him that Mom set aside this amount for her cremation. If he wants a traditional burial, then he can pay the difference. If not willing to do that, then u go with the cremation.

I also liked that you need to show Moms will to the Crematorium director to show that you r caring out Moms wishes.
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lexicoleman Mar 20, 2021
Unfortunately, they didn't want to pay for a traditional burial either. The crematorium required a court order not the will. I had a petition for determination of authority and the judge ruled in my favor.
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If one family member objects to cremation and there are no funds set aside for 'traditional' burying, who pays for that?

Betcha if brother had to cough up the $10K to deal with an open grave burial, he'd change his tune.

People opt for cremation for many reasons and it's YOUR job as executor to make those things happen. This is the exact reason our SON is not our executor and our DAUGHTER is. She will do everything just the way we want. Son would drive his sisters crazy.
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lexicoleman Mar 20, 2021
Oh, for sure! My brother wouldn't have even paid for the traditional burial. But, I finally got a court order in my favor and I'm carrying out her wishes.
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I have read that this is common. If one family member objects they will not cremate. Try a different crematorium first?
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lexicoleman Mar 20, 2021
I didn't want to move my mother from crematorium to crematorium. It's Virginia law that they need permission from the family members so, we would just get the same answer from other crematoriums.
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No offense, but you'd never win a lawsuit like that.

Take the will and your ID to the mortuary and tell them you are the authorized party to make decisions in this matter and to do it. If they continue to balk, transfer your mother's remains to another mortuary, then sue the first place for the additional expense incurred. That's a lawsuit you could win.
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lexicoleman Mar 20, 2021
We did win :)
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Why in the world would your brother object to your mom’s last wishes?

I agree with Geaton. Take the will to the crematorium and show them.

Or can you have an attorney write a letter to them with a copy of the will?

So sorry that you are in this predicament.

Best wishes to you.
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lexicoleman Mar 20, 2021
Thanks! We had a petition for determination of authority and the judge ruled in our favor.
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Take the will to the crematorium and show it to them? Then inform them that you are keen on legally carrying out her legally documented last wishes.
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lexicoleman Mar 20, 2021
Unfortunately, the crematorium needed a court order. So, we had a petition for determination of authority and the judge ruled in our favor.
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If you are keen to sue then perhaps you could take some of that money and have a lawyer back your authority to the crematorium, perhaps there is a way they could be offered a waiver offering to absolve them of all responsibility - they can't be faulted for hesitating to step into anything where they may be help accountable.
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lexicoleman Mar 20, 2021
Well - At the moment, I didn't know what legal options to take hence why I said 'sue.' But, in the end, I had filed a petition for determination of authority and the judge ruled in our favor.
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