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Who decides how my remains will be handled after death?

Richard M.  Alderman Interim Dean of the Law Center

Richard M. Alderman
Interim Dean of the Law Center

Q. I recently prepared my will. That got me thinking about what happens to my body after I die. Who decides whether I will be buried or cremated, and where?
A. The simple answer is that you can determine how your remains will be handled after your death. Many people know what they want to happen to their body when they die. You can leave detailed, written instructions for your family, or appoint an agent (such as your spouse) to make the decisions for you. You may include a statement or your wishes in your will or in a separate writing, such as a prepaid funeral contract. You may state whether you choose to be buried and where, or cremated and have your ashes scattered in a specific manner.
If you do not indicate how you wish your remains to be handled, the decision will made by one of the following people, in order:
1. your surviving spouse;
2. any one of your surviving adult children;
3. either one of your surviving parents;
4. any one your adult siblings;
5. one or more of the duly qualified executors or administrators of your estate.
Although the law will determine who makes the decision if you do not leave instructions or an agent, the best way to makes things easy and less costly for your family is to make this decision yourself or appoint an agent, in advance.
Q. I saw a house listed for sale. I was the first one to make an offer and I offered the seller the full listing price, exactly what he was asking. He refused to accept and said he wanted more money. Don’t we have a contract? Doesn’t he have to sell the house at the listing price?
A. This is a very interesting question, and the answer may surprise you. Under the law, when a seller advertises a house for sale, he is merely inviting offers from prospective buyers. As a buyer, your “offer” to buy the house is just that, an “offer.” The seller may accept your offer or reject it. In other words, by putting the house on the market the seller is merely soliciting offers; he is not making an offer to sell. Whether the seller accepts your offer is not based on the listing price, it is based on the market. When there are many interested buyers, the listing price may be just the starting point for negotiations. My guess is the seller had several people make offers at the listing price, and now expects higher offers.
Q. I just received a letter from a debt collector telling me that if I didn’t make arrangements to pay he would take all the money in my bank account. The only money in that account is my Social Security check, which is all I have to live on. What can I do to protect myself?
A. It is not necessary for you to do anything to protect yourself; Congress already has protected you. First, no one can take any money from your bank account without first suing you and getting a judgment against you. If he is threatening to garnish your bank account there may have already have been a lawsuit. More importantly, however, under federal law, your social security check is protected from your creditors even if they sued and won. A creditor cannot take Social Security funds when they are in the bank.
I suggest you first tell the debt collector you want a copy of the judgment against you. Then, let him know all the money in your account comes from social security, and that you know your legal rights and you expect he will stop making unlawful threats. If the debt collector does not have a judgment, or continues to threaten to take the money in your bank account, he probably is violating both federal and state debt collection laws. My guess is he will stop threatening once he knows you know your rights. If he does not, contact a consumer law attorney.


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