An estate planning and probate attorney should not forget about used burial spaces.  Consider, for example, a plot owner who purchases a plot containing two burial spaces.  Even after he buries his deceased wife in one of the spaces, he will still be the owner of the exclusive right of sepulture to both burial spaces. The exclusive right of sepulture to a burial space does not disappear once the remains of a person have been interred in the space.  In fact, there are several important rights that are peculiar to a used space:

• The right to make decisions regarding the design and placement of any markers, monuments, or other memorials on a grave in the plot.  See Sherman v. Gray, 150 Me. 13, 102 A.2d 867 (1954).

• The right to consent—or to withhold consent—to a subsequent interment in the same plot.  See Tex. Health & Safety Code §711.0395.

• The right to consent—or to withhold consent—to the disinterment of the remains buried on the plot.  See Tex. Health & Safety Code §711.004(a).

• The complete right of sepulture in the plot following a disinterment and removal of remains from the space.
  

Thus, whether an attorney is drafting a Last Will and Testament or a Transfer of Right of Sepulture, the attorney should include all burial property owned by the plot owner (or former plot owner, as the case may be)—both used and unused—in the instrument.  This is just one more service that a savvy estate planning and probate attorney can offer his clients.

    In 2013, the Texas Legislature began to regulate cemetery brokers.  See Act of May 17, 2013, 83rd Leg., R.S., H.B. 52.  The Act amends chapter 711, Health and Safety Code, by adding several new sections: §711.0381 (Sale or Resale of Plots by Certain Persons); §711.057 (Emergency Orders); §711.058 (Restitution); and §711.059 (Seizure of Accounts and Records).  It also adds two entirely new subchapters: Subchapter C-1 (Cemetery Broker Registration), containing five new sections:  §711.045  (Definitions); §711.046 (Cemetery Broker Registration); §711.047 (Exemptions); §711.048 (Complaints); and §711.049 (Termination of Registration), and Subchapter F (Powers and Duties of Department of Banking Relating to Cemetery Brokers), containing four new sections: §711.081 (Definitions); §711.082 (Administration; Fees); §711.083 (Records; Examination); and §711.084 (Examination Fee).  Finally, the Act amends the following sections:  §711.001; §711.012(a); §711.038; §711.052(a); §711.056(a).  

Effective Date.

    Section 711.0381 and Subchapter C-1 take effect on January 1, 2014.  Act of May 17, 2013, 83rd Leg., R.S., H.B. 52, §11(b).  Other parts of the

Do you have a Will?  My Estate Planning page provides a brief overview of various estate planning instruments as well as some considerations for why it is important to have a will.

Have you done estate planning in the past?  It is a good idea to review your estate plan from time to time in view of possible changes in your financial holdings and value, in your family and estate, and in applicable tax, probate, and other laws.

If you would like more information please contact me or call my office to schedule an appointment.