North Carolina Estate Planning Blog : North Carolina Estate Planning Lawyer & Attorney : Trust Counsel, PA : Trust Administration : Serving Chapel Hill, Durham, Raleigh, Pittsboro, Orange County, Chatham County

Cremation is an increasing common way of handling human remains.  While cremated remains are sometimes buried, there is often a desire on the part of family members (or a request from the deceased) to scatter the ashes somewhere.

North Carolina General Statutes Section 90-210.130(f) provides for legal methods of scattering of cremated remains:

• over uninhabited public land
• over a public waterway or sea, subject to health and environmental standards
• on private property of a consenting landowner
• must be removed from the closed container

Boats or airplanes can be used to perform the scattering.  Scattering in a scattering garden in a dedicated cemetery is also permitted under NCGS Section 90-210-130(c).

Keep in mind that unless the deceased has requested cremation in a Will, Health Care Power of Attorney or other writing witnessed by two people, the next of kin must consent to the cremation in writing before it can take place.

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See this article from the AARP website.  I have had clients who have lost money when their prepaid plans were not honored.  The longer ago the plan was purchased, the more likely it is that there will be a problem.  Ownership changes, business termination, and theft or fraud can all affect plans.

One alternative is to establish an irrevocable funeral trust, funded by life insurance.  This technique will protect the policy and provide cash to pay additional expenses such as travel to the funeral, etc.  However, one must be in good enough health to qualify for the insurance coverage.

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The recent highly publicized disputes over of the disposition of the bodies of James Brown and Anna Nicole Smith has lead me make an extra effort to ask clients about their wishes for cremation and/or burial.  The wishes should not only be communicated to family members, but reduced to writing to provide evidence should family members later disagree.  Besides including the instructions in a Will, it may make sense to include them in a Health Care Power of Attorney.

In North Carolina, a person can only authorize his or her own cremation in a Will, Health Care Power of Attorney, Preneed funeral contract, offical cremation authorization form, or a written statement witnessed by two people.  In other words, a simple note in one's own handwriting, with no witnesses, is not valid.  Click "Continue Reading" to view the NC law on cremation authorization.

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