Mortuary Law- Chapter 6 Flashcards Preview

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Flashcards in Mortuary Law- Chapter 6 Deck (36):
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The care of the family and the proper performance of his/her duties.

The Principal Concerns of the Funeral Director

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  • The estate of the decedent
  • The surviving spouse
  • A parent (if the decedent is a minor)
  • Any person who signs the contract with the funeral home
  • In the last resort, the government

Sources to look to for the payment if the funeral bill

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  • Primary obligor
  • Reasonableness of the funeral bill
  • Collection against an estate

Liability of the Estate

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The real and personal property owned by the decedent at the time of his or her death.

Estate

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Land and anything attached to it.

Real Property

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Any tangible or intangible property such as personal effects, furniture, automobiles, jewelry, money, stocks, bonds, insurance proceeds payable to the estate, and the like.

Personal Property

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Primarily responsible to pay the reasonable and necessary expenses of the disposition of the body.

  • If it has property, the funeral director may look to it for payment of the funeral bill

Estate

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Will usually be accorded a high priority in the list of claims to be paid. The bill itself or at least a large portion of it is typically the second or third debt to be paid.

The Funeral Bill

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Paid before bequests are made to heirs and legatees under the estate.

General Debt

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If the decedent leaves a will that authorizes payment of funeral expenses, such provision is enforceable against the estate if it has sufficient assets to pay the bill. If the decedent does not leave a will, or if the will does not specifically provide for the payment of funeral expenses, the amount of funeral expenses properly charged againt the estate will, in the absence of a statutory provision, be limited by the probate court to a reasonable amount.

Reasonableness of the Funeral Bill

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If the court finds the bill is ________ high, it will not permit assets of the estate to be used to pay that amount which it finds to be ______.

Unreasonably

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  1. The size and solvency of the estate
  2. The right of the creditors
  3. The station in life of the decedent
  4. The decedent's religious faith
  5. The decedent's fraternal memberships
  6. Local and contemporary custom
  7. The funeral director's knowledge of the financial condition of the decedent.

Determining the Reasonableness of a Funeral Bill (Courts)

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Often measured in relation to the size of the estate.

Reasonableness of the Funeral Bill

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If the decedent maintained a higher position in life, a more expensive funeral bill may be justified.

Position in Life

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If local, ethical, or religious customs will be more inclined to permit a more expensive bill.

Religious Faith

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If the funeral director contracts for a pretentious funeral although he knows the estate is modest, the court will be less willing to permit the estate to pay the expensive funeral bill. If the funeral director had no knowledge that the estate was small, a court will be more inclined to approve a higher funeral bill.

The Funeral Director's Knowledge of the Financial Condition of the Decedent

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One of the principal disadvantages of looking to the estate for payment of the funeral bill.

The Delay in Collection

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Can often take up to a year after the death of the decedent.

Probate of an Estate

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While the probate laws in most states permit executors to pay funeral expenses from the estate even before the executor is appointed by the court, funeral directors in many cases encounter problems in promptly collecting funeral bills from estates.

If the funeral director has additional parties execute the funeral contract, it enables the funeral director to collect the funeral bill from third parties if the estate delays the payment of the bill.

It is Advisable for Funeral Directors to Have Additional Parties Execute the Funeral Contract

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The common law rule is that the husband and father are primarily liable to pay the funeral expenses of the wife and dependent children.

  • Even if the wife leaves the estate
  • True whether or not the husband signed the contract
  • Cannot recoup the funeral expenses from the decedent's estate.
  • Primarily liable and the estate is secondarily liable for the funeral expenses.

Liability for Funeral Expenses of Dependent

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Some states have ______ the common law rule (making the husband/father liable) making the estate primarily liable for funeral expenses.

Superseded

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If the wife or child specifically provides in his or her will that the estate is to pay for the funeral, the husband or father's duty to pay the expenses is ______ by the estate.

Superseded

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It should be noted that if another member of the family or a third party executes the funeral contract and agrees to become primarily liable to pay for it, the husband or father's obligation is ________.

Extinguished

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Under the common law, the duty of the husband is not affected by the fact that the husband and wife are separated at the time of her death. Nor is his liability avoided by the fact that he did not arrange the funeral, that he did not attend it, or even that he was not ___of her death.

Aware

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Under the common law, there is no duty on the _____ to pay for her husband's funeral. However, in some jurisdictions an exception to this rule is recognized where the husband's estate is inadequate to pay for the expenses.

Wife

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In some states, there are statutes making the wife ______ chargeable for family expenses, thereby abrogating the common law and making her responsible for the husband's funeral expenses.

Equally

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The person who ______ a funeral director to undertake a funeral does not automatically make himself liable for the funeral expenses.

Requests

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Unless the law implies liability on the requestors part because of his _____ ______ to the decedent or because he expressly or implicitly agress to become individually liable for the funeral expense, he will not be responsible for the funeral bill.

Legal Relation

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In some states that do not have the statutory law that makes the estate primarly liable, jurisdictions hold that in the _______ of special understanding that the funeral home is to look to the estate for payment, the widow who arranges the funeral will be liable.

Absence

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Although an unlreated third party is not liable for funeral expenses even if he arranges the funeral, he can agree by ___ or ____ contract to make himself personally liable on the contract, the funeraly director should have the party execute a written contract.

Oral or Written

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In those cases where there is a question about the size or solvency of the estate, it is prudent that the funeral director have a relative ___ ____ become liable on the contract in the event that the estate is unable to pay the funeral expenses.

Third Party

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Usually not appointed until well after the funeral services have been provided so the question of his liability seldom arises.

  • When they engage the service of the funeral director for the decedent, may be personally bound to pay the funeral expenses unless he has stipulated against personal liability, or the circumstances are such as to clearly show that the funeral director was looking to the estate for primary payment.

Executor or Administrator of the Decedent's Estate

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If an executor or administrator pays fo rthe funeral from his ___ ___, he may be reimbursed by the estate for the reasonable expense of the funeral.

Own Funds

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Where an executor is vested by a ___ with authority to expend for funeral expenses such amount as he deems proper, the exercise of his discretion will not be reviewed by the probate court in the absence of showing that he arbitrarily and improperly determined the amount to be expended for funeral expenses.

Will

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Where a funeral is ordered by a public official in the performance of the duties of his office, the state or one of its subdivisions may be rendered liable to the funeral director for the funeral.

  • The funeral director should ensure that the state or one of its subdivisions will accept responsibility for payment of the bill before performing the funeral.

Liability of State

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May also be responsible by law for the full or partial payment of indigent funerals.

  • With tightening budgets, funding for dispositions of indigents has been eliminated or restricted in many jurisdictions.
  • Funeral directors need to know what government agencies make funds available for indigent funerals and how to make claims for those funds.

State and Local Governments