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  1. #1
    Join Date
    Jun 2018
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    1

    Default Rights to Arrange Interment of Ashes

    My question involves estate proceedings in the state of: New Mexico

    Parents had set up a family trust in which one of the children was to to become co-trustee upon the death of a parent. When this happened, the surviving spouse refused to acknowledge the other party as co-trustee, and worked with a lawyer to split the trust, but not 50-50 as was specified in the trust agreement. Through a technicality, because of some oversight, many of the accounts were not specifically titled to the trust. Very little was left in the credit trust after the split.

    Since then, the surviving spouse has abandoned the house (though continuing to pay property taxes) with the deceased spouse's ashes in it. The house is split 50-50 between the credit trust and the surviving spouse's trust. The household items are under the ownership of the surviving spouse. The surviving spouse has forbidden the children entry to the house. The children would like to have a final resting place for their deceased parent. The deceased parent had expressed where she wanted to be interred, and the children would like to follow through with this request. Do the children have any legal standing here? One of the children is co-trustee of the credit trust, but has been removed as a co-trustee of the surviving spouse's trust.

    Thanks.

  2. #2
    Join Date
    Sep 2005
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    Behind a Desk
    Posts
    98,846

    Default Re: Rights to Arrange Interment of Ashes

    From what you have written, it appears that the settlement of the trust disputes gave the surviving spouse exclusive rights to use and possession of the home, in addition to 50% of its value. You speak of her having "abandoned" the home, but also suggest that she is abiding by the requirements as set forth in the trust to pay the expenses of the home (or at least the taxes) so that it doesn't end up in tax foreclosure. We cannot review the trusts, so we have no way of determining if there are any provisions that would trigger a right of the children to take possession, or whether the present circumstances would qualify.

    As for the ashes, as the issues of burial were not addressed either at the time of probate or during the negotiations over the trusts, it appears that they would be seen as the personal property of the surviving spouse. Further, they are apparently in the co-owned home, to which the surviving spouse has the apparent legal authority to exclude the children. As such, it appears (but we have no way to verify) that the ashes are the property of the surviving spouse, and that even if they are not the children have no way to obtain the ashes without the surviving spouse's consent or without first obtaining a court order.

    You say, "The deceased parent had expressed where she wanted to be interred". That's an issue that would normally be addressed during probate proceedings, not as part of a subsequent trust dispute. If this expression of wishes is in writing made by the deceased parent, ideally within the deceased parent's will, then the children can show the documentation of that wish to a probate lawyer to discuss possible legal action. If not, the children may still meet with a probate lawyer, but they can expect to have difficulty proving the deceased parent's intention if disputed by the surviving spouse.

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