California law lists those who have the right, duty, and responsibility to make decisions about disposition arrangements after a person’s death. They are, in order, as listed in the law:
- A person, prior to his or her death.
- The Person Authorized to Direct Disposition (PADD) on a U.S. Department of Defense Record of Emergency Data (DD Form 93) as that form existed on December 31, 2011, or its successor form.
- An agent under a California power of attorney for health care.
- The surviving competent spouse or registered domestic partner.
- The surviving competent adult child or the majority of the surviving competent adult children.
- The surviving competent parent or parents.
- The surviving competent adult sibling or the majority of the surviving competent adult siblings.
- The surviving competent adult or the majority of the surviving competent adults in the next degree of kinship.
- A conservator of the person appointed under Part 3 (commencing with Section 1800) of Division 4 of the Probate Code when the decedent has sufficient assets.
- A conservator of the estate appointed under Part 3 (commencing with Section 1800) of Division 4 of the Probate Code when the decedent has sufficient assets.
- The public administrator when the decedent has sufficient assets.
The law protects a person’s choices after death, providing that:
- The written directions are clear and complete; and
Arrangements for payment of final services via trusts, insurance, commitments by others, or any other means have been made which precludes the payment of money by the survivors(s) who might otherwise have the right to control disposition
- Instead of giving written instructions, a person may give the right and duty of disposition to a PADD (if an active duty member of the U.S. Armed Forces) or to an agent under a power of attorney for health care or an advance health care directive. This agent will have the full right to act and control the decedent’s disposition unless the power of attorney or an advance health care directive limits or removes that right or ceases upon death.
- In the absence of written instructions, a PADD, an advance health care directive, or power of attorney for health care, the right and duty of disposition moves next to a surviving competent spouse or registered domestic partner. To be considered a registered domestic partner in California, a person must have filed a Declaration of Domestic Partnership with the Secretary of State under Family Law Code section 297.
- In the absence of the above documents and people, the right and duty of disposition would fall to the surviving competent adult child or the majority of the surviving competent adult children, then the competent parent or parents, then the competent adult sibling or the majority of the surviving competent adult siblings, and then the competent adult or the majority of the surviving competent adults in the next degree of kinship, followed by conservator of person, conservator of estate, or public administrator.
In addition, the law governs issues such as the time in which family members must act, what happens if all members cannot be found or cannot agree on what to do, and who is responsible for the costs of disposition. Be sure to review and understand all the provisions of law when you are considering these choices.
The law does not require embalming. However, the person with the right to control disposition must accept or decline embalming by signing a specific form prescribed by the Bureau. Additionally, a funeral establishment must refrigerate an unembalmed body in its possession if burial or cremation does not take place within 24 hours. (See exception under Home Death Care.) As a practical matter, however, you may wish to authorize embalming if there will be a delay before a public viewing. Keep in mind that embalming does not prevent decomposition of a body.
(NOTE: A coroner may require embalming in certain circumstances.)
The law does not require outer burial containers, commonly known as vaults or grave liners, but cemeteries may require them because they keep the ground from settling after burial. Typically, vaults completely surround the casket in concrete or other material. Grave liners cover only the top and sides. Neither container will prevent the eventual decomposition of human remains.
Natural burial, also referred to as green or eco-friendly burial, is a way of caring for the dead with minimal environmental impact, often without a casket or burial container. The body is typically not embalmed and may be encased in biodegradable materials for burial. Talk to cemetery staff if you’re interested in this option.
Home Death Care
The use of a funeral establishment and funeral director is not required by law when preparing a body for disposition. You can arrange for your body, or that of a loved one, to be cared for and prepared for disposition by family and friends at home. If you choose home death care, you must:
- File a properly completed Certificate of Death, signed by the attending physician or coroner, with the local registrar of births and deaths.
- Obtain a Permit for Disposition from the local registrar of births and deaths.
- Provide a casket or other suitable container.
- Make arrangements directly with the cemetery or crematory.
Your local county health department may be able to help you file a Certificate of Death and/or a Permit for Disposition.
(NOTE: Human remains may be kept at home without embalming or refrigeration until disposition. Generally, decomposition will proceed more rapidly without refrigeration or embalming.)
California law permits coroners to charge for certain services. Fees vary by county.
Retail Casket Sellers
California law requires retail casket sellers, when beginning any discussion of prices, to give customers a written price list of all caskets, alternative containers, and outer burial containers normally offered for sale and the price for each. In addition, if customers ask for the list in person or by phone, the retail casket seller must give them a written statement identifying caskets or containers by price, thickness of metal, type of wood or other construction, and by interior and color. Price, thickness, construction, and color information must also be included on a tag conspicuously attached to each casket. Prior to a sale, the seller must provide the buyer an itemized statement of all costs involved.
Retail casket sellers are not allowed to arrange funerals or cremations or perform any other functions requiring a license as a funeral establishment. Before doing business with any retail casket seller, you may wish to check the company’s business practices with your local Better Business Bureau.
(NOTE: Retail casket sellers are not bound by the State laws or regulations that govern funeral establishments, crematories, and cemeteries, nor are they licensed or regulated by the Cemetery and Funeral Bureau or by the Federal government. They are governed by State and local business laws and licensing regulations.)
(NOTE: Be sure that your contract includes a cancellation clause if you change your mind. Keep in mind that if you cancel a funeral preneed trust, under the law, all the money you paid in must be refunded to you. Most cancellation clauses require a revocation fee, limited by law to no more than 10 percent of the total amount that you have paid in. This revocation fee can only be taken from trust fund earnings.)
Before you choose a preneed trust contract, consider the following:
- Ask for a guaranteed price plan. This protects you and your family from future price increases. Without it, your survivors may have to make up any difference in cost. However, even with a guaranteed price plan, some items or services will probably have to be paid at the time of need. Obtain a written estimate of these additional “at-need” charges so you and your family will know what to expect at the time of need.
- Make sure the funds in your preneed trust increase in value, and find out where the money is being invested and who the trustees are. You may receive an annual statement of earnings, which may have to be reported as interest income on your tax returns. Also, be sure that the plan includes a written provision that states what will happen to any earnings left over after the funeral expenses are paid.
- Find out if you have to pay the entire amount into the trust up front, or if you can pay over time. If you pay over time, ask if interest is being charged and how much. Also, ask if there is a penalty for late payments.
- Ask if your funeral arrangements can be transferred to another funeral establishment or if the cemetery will buy the property back if you move out of the area or change your mind.
- To guarantee prices of cemetery goods, such as a vault or a marker, buy them and have the cemetery store them until they are needed. This is called “constructive delivery.” The law prohibits the constructive delivery of funeral goods. Make sure the purchase contract specifies the manufacturer and model of the items you purchase, as well as any inscriptions and descriptions of the materials used. Obtain in writing the address where the goods are stored.
The law does not require the purchase of a casket before cremation.
(A combustible cremation container, typically referred to as an alternative container, is required.)
“The human body burns with the casket, container, or other material in the cremation chamber. Some bone fragments are not combustible at the incineration temperature and, as a result, remain in the cremation chamber. During the cremation, the contents of the chamber may be moved to facilitate incineration. The chamber is composed of ceramic or other material which disintegrates slightly during each cremation, and the product of that disintegration is co-mingled with the cremated remains. Nearly all of the contents of the cremation chamber, consisting of the cremated remains, disintegrated chamber material, and small amounts of residue from previous cremations, are removed together and crushed, pulverized, or ground to facilitate inurnment or scattering. Some residue remains in the cracks and uneven places of the chamber. Periodically, the accumulation of this residue is removed and interred in a dedicated cemetery property, or scattered at sea.”
The person who has the right to control the disposition of the body must sign a written authorization before cremation can proceed. This authorization, or a separate contract, indicates the location, manner, and time of disposition of the remains. It also includes an agreement to pay the costs for the cremation, for disposition of the cremated remains, and for any other services desired. (If you wish to arrange for your own cremation, you can legally sign the Declaration for Disposition of Cremated or Hydrolyzed Human Remains yourself.)
In addition, a burial/cremation permit (called Application and Permit for Disposition of Human Remains, VS 9) must be issued by the county health department. The funeral establishment usually arranges to obtain this permit as part of its services.
California law does not prohibit the person authorizing the cremation from viewing the cremation process, and some facilities may be able to accommodate more than one family member. Crematories that do not allow viewing of the cremation process must disclose that fact in writing prior to signing any contract. There may be a charge for attending the cremation. Check with the crematory for its policies.
A casket is not required for cremation by California law, but a combustible cremation container, also known as an alternative container, is. The container must be one that can be closed and is leak-resistant. A cardboard box constructed for this purpose is acceptable. You do not have to buy the container from the funeral establishment or crematory, but it does have to meet the standards set by the crematory.
You should make a decision about removing all personal possessions of value, such as jewelry or mementos, before the body is taken to the crematory. Pacemakers, most prostheses, and mechanical or radioactive devices or implants are most often removed prior to cremation.
By law, all cremations must be performed individually, unless a multiple cremation is authorized in writing and the cremation chamber is capable of multiple cremations. Only a few crematories have this capability and/ or will permit it.
After the cremation has been completed and the cremation chamber has cooled, the remains are swept from the chamber, processed to a uniform size, and placed in a sturdy plastic bag sealed with an identification disk, tab, or label. The bag is then placed in a durable cremated remains container.
In California, you may choose any of the following methods of disposition of cremated remains:
- Placement in a columbarium or mausoleum – There may be additional charges for endowment care, opening or closing, recording, flower vase, and nameplate.
- Burial in a plot in a cemetery – There may be additional charges for endowment care, opening or closing, recording, outer burial container, flower vase, and marker.
- Retention at a residence – The funeral establishment or crematory will have you sign a Permit for Disposition showing that the remains were released to you and will file it with the local registrar of births and deaths. You may not remove the cremated remains from the container and you must arrange for their disposition upon your death.
- Storing in a house of worship or religious shrine if local zoning laws allow.
- Scattering in areas of the State where no local prohibition exists and with written permission of the property owner or governing agency. The cremated remains must be removed from the container and scattered in a manner so they are not distinguishable to the public.
- Scattering in a cemetery scattering garden.
- Scattering at sea, at least 500 yards from shore. This also includes inland navigable waters, except for lakes and streams.
Cremated remains may not be transported without a permit from the county health department and they may not be disposed of in refuse.
Cremated remains may be scattered as described above by employees at a licensed cemetery, cemetery brokers, crematory employees, registered cremated remains disposers, funeral establishment staff members, or the decedent’s family. All cremated remains must be removed from the container for scattering, with the exception of those remains placed into a scattering urn for scattering cremated remains at sea from a boat.
Scattering may also be done by any person having the right to control the disposition of the cremated remains of any person or that person’s designee if the person does not dispose of or offer to dispose of more than ten cremated remains within any calendar year.
When scattering remains, you should avoid inhaling the dust from the remains, since there may be health risks. The county health department must issue a Permit for Disposition, and boat/aircraft operators must notify the U.S. Environmental Protection Agency after scattering.
State law requires cremated remains disposers who scatter by air or boat to post copies of their current pilot or boating licenses and the addresses of their cremated remains storage areas at their place of business. The law also requires disposers to conduct scatterings within 60 days of receiving the remains, unless the person with the right to control disposition is notified in writing of the reason for the delay.
Death Out of State
Burial – If death occurs away from the city where burial is to take place, you will need to have the body transported using the coordinated services of a funeral establishment in each city. If the body is transported by shipping on a common carrier, the body must be embalmed prior to shipping. If it cannot be embalmed, the body must be shipped in an airtight casket or transportation container.
Cremation – You can arrange for the body to be cremated in the distant city and for the cremated remains to be shipped to you.
Death Out of the Country
If death occurs in another country, the U.S. Embassy or Consulate in that country can assist in making arrangements for the return of the body or for its local disposition. You will usually be able to obtain English translations of the death certificate and other documents through the nearest U.S. Embassy or Consulate.
Donation for Medical Purposes
If you wish to donate your body to a medical school for educational or research purposes, you will need to make arrangements with the school well in advance. It is a good idea to check with the school every few years, since procedures and needs may change. By law, the school is responsible for costs of final disposition.
Q. Why plan a funeral in advance?
A. By planning in advance, you can make informed choices, compare prices and options, and discuss your preferences with your family. The result can be peace of mind for yourself and your loved ones.
Q. What options are available?
A. Options include a traditional funeral service, memorial service, burial, entombment, cremation, scattering at sea, or inurnment, among others. You may also wish to consider organ or tissue donation or donating your body to medical science. Exploring these options beforehand helps you decide what is best for you and your family.
Q. How do I find a reputable provider of funeral or burial services?
A. You can ask friends or relatives for referrals, check the Internet or the Yellow Pages, or consult the Better Business Bureau. In some areas, there are funeral consumer groups or organizations that offer help and guidance. The Cemetery and Funeral Bureau licenses all funeral establishments (and funeral directors) operating in California. The Bureau also licenses all cemeteries in California that are privately owned or owned by fraternal organizations. The Bureau does not license cemeteries that are operated by religious institutions, a cemetery district or other government entity, the military, Native American tribal organizations, or other groups. Visit the Bureau’s Web site or call (916) 574-7870 to verify license status.
Q. After I decide on my preneed arrangements, what should I do?
A. You should create a written preneed plan. Most funeral establishments and cemeteries offer prearrangement guides you can fill out to keep and share with your family. You may want to consult an attorney about including your preneed information in your will or other legal materials.
Q. Can my arrangements be changed before or after my death?
A. Only you can make changes to your arrangements before they are needed. If your instructions are clear and you’ve made provisions to pay for the costs, your survivors cannot make changes. Survivors can make changes only if your documents allow changes or if the arrangements are incomplete, unclear, or not fully paid for.
Q. Should I pay for my preneed choices ahead of time?
A. Prepaying spares your survivors the burden of arranging payment. It also keeps you in control of the costs and ensures that your wishes can and will be carried out.
Q. How do I prepay funeral and cemetery expenses?
A. Prepayment methods include life insurance, funeral insurance, funeral trusts, and bank-held trusts or savings accounts. You may wish to consult an attorney and Medicare or Medicaid, if applicable, before making a decision about paying for preneed expenses.
Here are four common ways to pay for preneed services. Each method has its own advantages and disadvantages:
- Life insurance specifically purchased for funeral arrangements will pay a fixed amount based on the face value of the policy. Generally, the face amount is the same as the amount of the services, merchandise, and cemetery costs. Unless your preneed contract guarantees the costs of the merchandise and services, your survivors may need to pay some of the expenses.
- Funeral insurance can be purchased in an amount to pay for services, merchandise, and cemetery costs. If the costs are guaranteed, the insurance should cover all the expenses. Before you purchase funeral insurance, you should be told in writing exactly how much you will pay and what will happen if you do not pay the insurance premiums.
- Funeral trusts can be purchased in an amount to pay for services, merchandise, and cemetery costs. If the costs are guaranteed, the trust should cover all the expenses. Before you purchase a funeral trust, you should get answers to the following questions: Are the costs guaranteed? What are the cancellation terms? If the trust fund increases in value, who will receive any remaining money after the contract is fulfilled? What happens if the death occurs before the trust is paid in full?
- Bank-held trusts or savings accounts are accounts you establish to pay for funeral expenses. It is up to you to let your family and the funeral provider know about the money in the account. The cost of funeral services and merchandise is usually not guaranteed with this type of account.
- Are there any costs not included in the preneed contract that would have to be paid at the time of need? If so, who would pay them?
- Are the prices quoted on the contract guaranteed?
- Can the arrangements be transferred to another funeral establishment and/or cemetery if you move or simply change your mind?
- What happens to the contract if the establishment closes or is sold?
- Exactly who holds the preneed funds and how can you contact the company?
- If interest is earned on the account, who pays the taxes on the income earned?
- Can you cancel the contract and, if so, what would the penalty be?