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In probate, even what to do with the remains can be a fight

It is important that your estate plan be as comprehensive as possible, to make your wishes for distributing your property as clear as possible. You can also designate someone to have power of attorney in case you are ever incapacitated, and draw up a health care directive to control the extent of the medical treatment you would receive in such an event.

A well-crafted estate plan, likely done with the help of an attorney, will be able to provide guidance to your loved ones in case any dispute arises during probate, no matter how unlikely it may seem now. In one case that reached a Florida appellate court, the court had to decide how to dispose of the ashes of a 23-year-old man who died in a car accident.

The man was not married when he died, and had no children. He died intestate, a legal term that means he had no will or any sort of estate plan. His parents, who were his co-personal representatives and the beneficiaries of his estate, had his body cremated.

After that, they could not agree what to do with their son’s cremains. His father wanted the ashes to be declared “property” for probate purposes, so that they would be divided between the parents. For religious reasons, the mother objected to dividing the cremains. She successfully argued to the probate court that the ashes were not property, which is the usual legal position in Florida.

The law generally holds that a person does not have a property interest in their own body after they die. Thus, a decedent cannot “give” their body to a beneficiary through their estate plan. Still, we have the right to dictate how our remains are disposed of after death.

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