Appointment of Agent to Control Disposition of Remains

Russell W. Hall, Attorney

Bailey's Prairie is the final resting place of James Briton Bailey, one of Stephen F. Austin's Old Three Hundred colonists. He was buried standing so that no man could look down on him and say, "There lies old Brit Bailey." Legend has it that Brit also asked his wife to bury his rifle and to place a jug of whiskey at his feet. Thinking he had enough to drink, Brit's wife buried the rifle, but not the whiskey. Brit's ghost is said to still wander today searching for more whiskey. Had he planned ahead, Brit could have been buried in keeping with his stated desires.

Who Is Authorized To Handle The Burial Arrangements?

In Texas, specific laws govern who has the right to make burial arrangements. Any Texas resident may designate a person to handle these matters by appointing an "agent" to control disposition of his or her remains. Texas requires that the agent be appointed in a written document. When an agent is not appointed, family generally controls the remains. The surviving spouse has priority, followed by various other family members, including any of decedent's surviving adult children. If there are none, then priority goes to one of decedent's surviving parents, followed by decedent's surviving adult siblings, and finally, to decedent's next closest heir at law.

Do I Need To Appoint An Agent?

It is not necessary to appoint an agent to handle a burial, but it is advisable if you desire a specific person to handle these matters. You may select anyone as agent, e.g., a single sibling or a parent, even if a different person would otherwise have priority. An unrelated friend or companion may also be named.

How Do I Appoint An Agent?

To appoint an agent, you must complete the required form. A copy of the Appointment of AgentTexas form entitled Appointment of Agent to Control Disposition of Remains is available free at www.capitol.state.tx.us/statutes/he/he0071100.html (scroll down to 711.002 - Disposition of Remains). This form allows anyone to appoint one or more agents. It also provides space to insert special directions or limit an agent's authority to handle certain matters and not others. Like many legal documents, the person appointing an agent must sign the form before a notary public. It is also important that the designated agents and successor agent sign the form.

Do Instructions Matter?

Texas recognizes the right to leave specific burial instructions. Texas also recognizes that the disposition of a decedent's remains are first controlled by written instructions in (i) a will; (ii) a pre-paid funeral contract; or (iii) any document the decedent acknowledged before a notary public. When a person does not leave written instructions, the person making arrangements may ignore decedent's instructions.

What Are Some Other Considerations?

To avoid an agent ignoring oral instructions, it is important to complete the special directions section of the appointment form. Instructions as to cremation or burial should also be included. Think about the funeral budget to be used. Who is responsible for the cost? Although reimbursement may be sought later from decedent's estate, the initial expense may have to be paid by the person making the arrangements. A Viking or a New Orleans jazz funeral sounds fun, but someone still has to pay for it.

What About Brit Bailey?

Were today's Texas laws available to Brit Bailey at the time of his death, he could have signed an Appointment of Agent to Control Disposition of Remains to make sure that he would be buried with that jug of whiskey placed at his feet. Had that option been available in 1832, Brit's ghost would rest more comfortably today.

This article is provided as a service by the Probate, Trusts & Estates Section of the Houston Bar Association. Russell W. Hall is a native Houstonian who practices law in Bellaire, Texas.