Amy & Dan Smith's Planning for Life: Funeral Arrangements - Organ Donation - Cremation

Some of the stress of saying goodbye to a loved one can be relieved through advance planning for final wishes. Communication of those wishes is important. The instructions for the funeral service and ceremony for disposal of remains should, if detailed, be reduced to writing. There are online resources for recording that information, but an informal writing is usually sufficient. Reliance upon a will or a living trust for communication of such detail may not be wise as often the will or trust is not consulted until after the decedent is laid to rest. However, if an elaborate or unusually expensive event is desired, such provisions should be set forth in the will or trust so that the executor or trustee can cover the expense. If the costs are considered unusual for a person of the station of life of the decedent, the Commissioner of Accounts may not approve the expense as an allowable estate deduction. For example, a client may want a destination gathering of family and friends as a celebration of life after his demise. The expenses for such can be authorized in the will or trust.

After death, someone must be recognized as having the authority to make the many decisions which are required to be made. The Virginia Code specifically provides for the appointment of an agent to make arrangements for the funeral and disposition of remains in a signed and notarized writing. This appointment may be a separate writing or contained in another document such as an advance medical directive. Funeral homes welcome such an appointment! Otherwise, the law requires that “next-of-kin” make the decisions. This can be problematic in identifying the appropriate people and especially when relatives are not in agreement. The next-of-kin would be the decedent’s surviving spouse, if any; then, in order, the adult children, the parents, the adult siblings, and the adult nieces and nephews of the decedent. Court action may be required to resolve disagreement among the “next-of-kin.”

Organ donation is accomplished by registering online at or signifying your intention when your driver’s license is renewed. Your driver’s license will have a heart icon showing beneath your picture if you registered when renewing your license. An agent under an advance medical directive can make an organ donation for the principal unless the directive specifically prohibits the gift. The custom in Virginia seems to be that the next-of-kin can prevent the donation even though the decedent had authorized it and even though the Virginia Code appears not allow the decedent’s election to be overturned.

Cremation may be requested in a will or otherwise indicated by the decedent prior to death. However, the practice is that the remains will not be cremated without the consent of the agent, if one has been appointed, or, if not, the next-of-kin regardless of the expressed desire of the decedent. Before cremation of remains, the medical examiner must give permission and there must a visual identification of the decedent by the agent or next-of-kin.

A note of interest to those readers who may be eligible, or who have loved ones who qualify, for burial in Arlington National Cemetery: in the absence of a surviving spouse, the oldest child of the decedent must authorize funeral arrangements.

From "Amy & Dan Smith's Planning for Life" column appearing monthly in the Blue Ridge Leader, Loudoun County, VA.

The foregoing article contains general legal information only and is not intended to convey legal advice.  For legal advice regarding estate planning, the reader should contact his/her lawyer.

Daniel D. Smith is a partner in the law firm of Smith & Pugh, PLC, 161 Fort Evans Road, NE, Suite 345, Leesburg, VA 20176. (Tel: 703-777-6084, He has practiced law in Loudoun County since 1980.