Friday, October 16, 2015

Cemetery Plot – Do You Own Any?

If you own one or more cemetery plots in Texas, who gets those plots upon your death?
You might think that the plots will pass pursuant to the Texas Estates Code and to the persons who receive your “residuary estate” (all the rest, residue, and remainder of your estate after specifically described gifts in your Will).  Take a look at the Texas Health & Safety Code, though, and also any contract you have signed with the cemetery association that oversees the particular cemetery where you own plots.

            What is a plot?  “ ‘Plot’ means space in a cemetery owned by an individual or organization that is used or intended to be used for interment, including a grave or adjoining graves, a crypt or adjoining crypts, a lawn crypt or adjoining lawn crypts, or a niche or adjoining niches.” Texas Health & Safety Code § 711.038(25).

            Who gets the plots when you die (to the extent not used for your internment)?  If you have a Will, you must specifically describe the plots and then give them to one or more persons.  Or, during your life, you may do a written declaration, filed and recorded in the cemetery organization’s office, stating who is to receive the plots upon your death.  (Check with the cemetery organization as it may have a form it wants you to use.)

            If you do neither, then the right to use (be interred) in your cemetery plots passes as follows: (1) to your surviving spouse, (2) to your children in order of need “without the consent of a person claiming an interest in the plot”, and (3) to your heirs at law.  Health & Safety Code § 711.039 is where these rules are set forth; it is quite repetitive and not all that clear,  What is clear, however, is that even though a cemetery plot is real property, unlike a deed to a residence, commercial buildings, and raw land, its ownership is not conveyed by filing a deed in the official public records.  Its ownership is recorded with and controlled by the records of cemetery organization which controls the cemetery where the plot is located.  Plots are different from other real property; see Oak Park Cemetery v. Donaldson, 148 S.W.2d 994 (Tex. Civ. App.-Galveston 1940, writ dismissed) discussing that plots are a right of burial, akin to an easement, license, or privilege.

            Are you able to sell your cemetery plot to a friend who needs one for a deceased relative of theirs?  Maybe and maybe not.  You also have to check the contract with and governing documents of the cemetery organization.  You may be surprised to learn that if you want to sell the cemetery plot, you may be required to sell it back to the cemetery organization, perhaps for the same amount paid for it.

            If you have cemetery plots that are important to your family, please be sure to deal with them by specifically describing them in your Will or completing paperwork with the cemetery organization that directs who receives the plots upon your death.  What happens if the plots are located in a cemetery that no longer has an active cemetery organization?  Consult an attorney.  It could well be that the right to the plots will just keep descending to the heirs of the original owners.  All the living heirs might be required to sign off on any interment, such as the placing of ashes into a grave which already has a relative’s body buried there.  This could become rather unwieldy.  The living heirs might be able to designate one of them as an “agent” to give directions regarding the plots.