family law ? about right to remains after a death

my mother died last week after a year long battle with pancreatic cancer and did not have a will. she did put me in charge of her finances & i was her legal primary care giver in charge of all medical decisions if she were not able to make them. she also added me to her checking & savings accounts. she had three life insurance policies all to be split 50-50 between me & my only brother. she has three sisters & two of them are protesting that my mother wanted her ashes split between the three sisters, my brother & myself. this would not be my first choice but did say that if that was my mothers wishes i would honer them. the problem is that they have nothing in writing that says to do this & neither my brother or myself have ever heard her ask for this. in fact i cant find a single person who has ever heard her say this other than the two sisters who are now threatening me by saying that they will force the situation into probate. even though they don't care about any of the money & they don't challenge what she wanted done with the money they do threaten to challenge it all to punish me & my brother by not complying to their demands. they figure if they threaten to get the whole estate into probate even though all they care about is the remains it will punish my brother & i by holding up the money. they figure that will make us cave into their demands for the remains. i was the one who paid for & did the paperwork on her cremation so i was told by the mortuary i am the only one they will release the ashes to.

without a will who has legal rights to my mothers remains? my brother & i or do her sisters have a legal claim to them even though they have nothing signed or in writing saying my mother wanted that? can they force the estate into probate? if you can please help, i know this is not a fun subject but i really could use some legal advice & help. thanks,

ETA: i dont get e-mails through this site so send PM if needed. thanks.

Gorvibub

Sorry for your loss.
Laws vary from state to state regarding probate and death. Please check your state laws.
I found this link Possession of body



Keeo track of expenses since they should be reimbursed by the estate. You should check you state laws and file as the executor of the estate since it should require probate since there is no will. You may want to Check with an attorney because I'm not one.

Please post back with what you find.

I would give them an urn with some ashes of some kind in it and let them be happy but the next question is what will they want next.

i should take up smoking cigars.

the little research i have done so far does seem to favor the children of the deceased over the siblings but i still don't know if they can force the estate into probate. not that there is much of an estate, she did not really own anything of value. i think i might have to speak to a CA. lawyer since that is where we lived.

if there are any CA. family lawyers reading this please share any info that might be helpful. if i can make myself the executor of the estate after her death i am not sure what i would need to do. i hate dealing with this kind of legal crap so i don't have much experience with this kind of stuff since i avoid it as much as possible.

Gorvibub

what do you mean force into probate? are not all estates probate so others have time to make their claims...

i don't know, this is my first time dealing with this. my mother did say what she wanted done on the money side (it's in the policies) but there seems to be confusion about what she wanted to be done with her remains. my mother told my brother & i to do what we wanted & the sister are saying she wanted them divided between the sisters, my brother and myself. essentially there are saying that they will get a lawyer to put a freeze on all accounts and insurance policies. at that point lawyers will use her assets to pay off all outstanding debts (instead of me doing it) & then having a judge decide who gets the remains. this will cost a lot of money & can hold things up for a year or more. her estate is basically a 10 year old car & about $60,000 in life insurance policies. everything else she owned i bought for her. i took very good care of my mother & spared no expense.

essentially they are threatening to get a lawyer to say i am going against my mothers wishes in hopes that a judge will put a hold on everything until the courts can decide who gets what. this will cost a lot of money & it will be taken from the estate leaving less for my brother & myself. if they can convince a judge that i am going against my mothers wishes (which i am not!) they could get control of her ashes, or at least that is what they are saying will happen

i am not worried about loosing the lawsuit, just the time & money it will take.

gorvibub

A probate action would not hold up the payout of the life insurance policies if those policies listed individuals as beneficiaries. Its a bluff. That said, I don't understand why you can't come to a resolution in this.

good to know that they cant hold up the insurance policies, my brother is disabled & needs the cash. i am more than happy to get everybody involved together so there is no he said she said crap & get everything out in the open & they have agreed to do this more than once but then pull out. this is not the first time they have acted like this after a death in the family, even when there's no blood relation but this is the first time they have fought over remains. they didn't divide their parents ashes so i don't know why they want to do it to my mom but if they can show me that is what my mother wanted i will do it. they say they have e-mails sent from my computer (from my mother) stating my mother wanted her ashes split among the sisters but refuse to forward the e-mail to me & i cant find a single e-mail in my sent folder (we shared an e-mail address) where my mother said that's what she wanted. all i want to do is honor my mother in the way she wanted. i have gone out of my way to work with the family but all i get are screaming personal attacks, lies & threats, i cant work with people who wont have an adult conversation like a rational person.

gorvibub

Why is dividing your mom's ashes a problem? My mom was cremated after she died, and there was more than enough "remains" to divide among five people.

it's not a question of if the are enough remains or not but more a question of is it what my mother wanted. i am also not looking forward to doing what i think of as a very morbid task, dividing the ashes. i did ask the mortuary if they would do it for me (if i found out that's what my mother wanted) but after the sisters harassed the mortuary in an attempt to pick up her ashes before i could they refused because they did not want to get involved in what could become a family lawsuit. i loved my mother very much & i want to make sure i am doing exactly what she wanted. i refuse to disrespect my mothers & she never told me this is what she wanted. she told me to do what ever would bring my brother & I the most comfort.

with all that being said i finally got to speak with my mothers third sister Ditto, she is very ill & in the hospital herself. this is the sister she was closest to & they spoke almost daily. Ditto did ask my mother what she wanted done with the ashes & she told ditto the same thing she told me but did add that if another family member wanted some of her remains it would be up to me but that she would be OK with that. i trust Ditto enough to take her word for it as if my mother said it herself.

after talking to Ditto it became clear that my mother did not ask for this to be done as her final wish but did say if i was willing to do so she was OK with it. so even though my mother did not ask for this to be done i will honor her words (despite the lies & personal attacks) & divide her ashes. i am not happy about it & i don't want to do it but i will honor my mothers words. the two sisters that started all this are just vindictive, lying, ugly people who the whole family hates but once again i will honor my mothers words. thank you to all that replied to such an ugly topic but i do appreciate the support & advice. i know that my mother would appreciate your help as well & i thank you on her behalf.

R.I.P. mother, i loved you very much & i prey that i have honored you in the way that you wanted & hope you will be proud of me.

Again I would give them an urn with some ashes of some kind in it and let them be happy and move on by the time they fiqure it out if ever it will be to late. But the next question is what will they want next.

that's how most of my side of the family feels but i will not disrespect my mother, if she said it i will do it. now as to what will they want next i don't know but i know what they will get next, a restraining order!

OP, I am not answering this as a legal question, just as moral one I suppose.
I would say you have to decide if YOU want her sisters to have some of her ashes.
Since as you say, there was no definite answer to this from your mother, and you
are the recipient of her remains. This is all up to you, personally I would let them have a
portion to avoid the legal and familial problems and be done with it. You can still
do whatever you wish with your portion. And they can do whatever they want with
their ashes from the smoker......

speed

ETA I am a horrible person, sorry for your loss.

I can't speak to CA law definitively, but in general, you would take precedence as both the closer tier of next kin and as the individual with the closest personal relationship to the decedent. There is a large void of caselaw here, and I can't seem to find the one case I want to look at (Pugh v. Castroreale, No. RIC 436078, slip op. (Cal. App. Dep't Super. Ct. Sept. 28, 2005).) but between members of an equal tier (parents in this case) the court held for the mother - I presume that she was closer to the child...but who knows. Adult son trumps sister. Unless you are clearly violating a stated wish of your mother, the sisters likely have no case.

If I was your Aunts' lawyer, I would tell them not to waste their time and money absent some hard proof of your mothers intentions.

I don't see in this thread that you express any real desires as to what you want done with the remains, nor is there any indication of what you think your mother would have wanted. You need to figure that out first. Is it worth alienating your family members, is it worth the frivolous lawsuit they might bring, only you can decide that. Get a copy of the e-mail (with headers).

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