Under Louisiana law, one can provide specific directions or the designation of a specific person to control the internment of that person’s remains. The directions must be in the form of a notarial testament or a written and notarized declaration. In the absence of specific directions, the law creates a priority of persons to make decisions. The person designated to control the disposition of remains in the form of a notarial testament or a written and notarized declaration is given priority. This person is followed by the surviving spouse (if no divorce is pending), a majority of the surviving adult children of the deceased, a majority of the surviving adult grandchildren of the deceased , the surviving parents of the deceased, a majority of the surviving adult siblings of the deceased, and finally a majority of the surviving adult persons having a degree of kinship as provided by law.
Clearly, a single person or persons in second marriages should consider burial instructions. Military personnel are subject to provisions under forms they have executed under federal law.
In providing the methodologies for leaving instructions, Louisiana law provides that such instructions can be given “in the form of a notarial testament”. A notarial testament involves among other requirements that the testament be signed in the presence of a notary and two witnesses. Well, it looks like this means that one cannot use a handwritten or olograhic will to dispose of remains because such does not meet the form requirements. A lot of times we see burial instructions in wills, but is this the best place to include such provisions. Such wills may be in a safety deposit box or safely concealed in the home waiting to be found. The better practice would be to do a separate document that meets the requirements and put it in the hands of the person one has designated to handle the disposition.
The second methodology for leaving instructions, “a written and notarized declaration”. The statute does not indicate whether an “affidavit” format can be used wherein the “affiant” simply appears or an “authentic act” requiring, among other things, the presence of a notary and two witnesses. When in doubt use the authentic act.
Other matters to consider in burial instructions may include: type of religious service or lack thereof, burial place, disposition of ashes, pallbearers and contents of an obituary.
For more information, contact Carey J. Messina at 225.382.3408 or Kevin C. Curry at 225.382.3484