A Living Will or Last Will and Testament provides for the distribution of your property after you die but does not cover the immediate funeral planning arrangements.
While no one enjoys thinking about their own funeral, making those arrangements in advance yourself may be one of the most thoughtful acts you can do for your loved ones. More and more people are including funeral planning as part of their estate plan, sparing their grieving families from having to make hasty arrangements during an already stressful time. You can appoint an agent to dispose of your remains, indicate how your remains should be handled, and describe your wishes for your memorial service or funeral. And, some people also opt to prepay their funeral expenses.

Why Does It Need to Be Written Down?

Death is a subject that many people do not want to talk about with their families. Consequently, although you may think that your loved ones know what kind of funeral or memorial service you want (if you want one at all), whether you want a burial or cremation, or other information related to your funeral, there is a good chance they do not know what your specific wishes are. In addition to creating an additional burden for your loved ones during a stressful time, the failure to leave written instructions can set the stage for conflict between emotionally overwrought family members who may have differing points of view about what you would have wanted regarding the disposition of your remains and memorial service.
In Texas, your survivors are legally obligated to comply with your written wishes about the disposition of your remains. However, if you do not record your wishes in writing and designate a person to handle the disposition of your remains, state law determines who makes those decisions on your behalf. Under the Texas Health and Safety Code §711.002, the order of the hierarchy is:

  • Your surviving spouse
  • Anyone of your surviving adult children
  • Either one of your surviving parents
  • Anyone of your surviving adult siblings
  • A duly qualified executor or administrator your estate; or
  • Another next of kin

If you are estranged from the person designated by law, or if you have two children who disagree about how your service should be handled, the resulting dispute could end up in court—the last thing grieving family members should have to face after you pass away.
In addition, even close family members may have values or religious convictions that are very different from your own. Writing down your wishes can help ensure that your family members will not have to guess about what you want, avoiding this extra burden at a difficult time.

Why Shouldn’t I Just Include It in My Living Will or Trust?

You can include provisions in your Will or Trust. However, since memorial or funeral services typically occur within a few days of a person’s passing and your will or trust may not likely be accessed or read until weeks or even months after your death, having a separate written document can help your family, executor and loved ones. Putting your wishes in writing can help avoid confusion or disagreements between survivors who may think you expressed other wishes elsewhere or verbally.

Should I Prepay for My Funeral?

Funerals and related arrangements can be shockingly expensive. Prepaying for your service is an option that you can consider helping your grieving loved ones avoid incurring significant debt. Also, if you prepay for your funeral arrangements, you can comparison shop just as you would when making other large purchases, without any time constraints. This will benefit your family members, who may make rushed arrangements without time to consider the cost or may make an emotion-based decision to spend a large amount of money as a means of honoring you. In addition, you can pay for the arrangements at their current prices, which may represent a substantial saving if you pass away many years in the future. Planning in advance can also ensure that you can obtain a cemetery plot or mausoleum of your choice, rather than leaving family members to hurriedly select a site that they may not have time to visit in advance.
There are some potential downsides to prepaying for your arrangements, however. If there is a possibility that you may move in the future and want to have your service in another location, you should not bind yourself to a plan that cannot be cancelled or transferred without substantial additional cost. Some larger cremation service providers and funeral homes have prepaid plans that will be honored nationwide, so be sure to do your research beforehand. You should also keep in mind that the funds you pay in advance for your arrangements will not be available to you for living expenses or emergencies. In addition, there is a risk that your funeral provider will close or mishandle your funds.
Note: The Federal Trade Commission’s Funeral Rule guarantees certain rights to consumers. For example, consumers have the right to choose only goods and services they want rather than a package, to be given written or verbal price lists for items and services offered by funeral providers, to be provided itemized statements showing what they are purchasing and the price of each item or service, and to have the right to use a casket or urn purchased from a vendor other than their funeral provider.


Since making arrangements for the disposition of your remains and your memorial service in advance can provide peace of mind for both you and your loved ones, think about including a written document with your wishes as part of your Living Will. Contact us today for more information on how we can help you prepare a Rememberance and Sevices Memorandum.

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