Q: In PA, do burial rights pass under the generic term in a will "all my residual estate" or must they be named?
The surviving wife of an "owner" of burial rights, my mother, wrote a letter to the cemetery in 2004 "assigning" the right of burial to me and my wife. In 2005, she drafted a will that bequeathed her entire estate to my sister. The cemetery burial rights are not named specifically in the will nor was a letter delivered to the cemetery rescinding the right previously granted to me. My mother died in 2007. I believe I have the right of burial under the terms of the 2004 letter because it was never rescinded AND burial rights are not specifically named in her will as being given to my sister. Can you assist?
A: A will only disposes of assets that a person owns as of the date of their death. If they have already given away property and they make a will and then die the will does not affect property that is already disposed of. Same thing if people make a will and give a gift to someone in the will and then they get rid of that item - the beneficiary does not get it back.
Question - if mother died in 2007, last time I looked at the calendar the year was 2014. Why is this an issue now? It should have been addressed 7 years ago.
If there is a writing on file with the cemetery that the burial plots were assigned to and your wife in 2004, then you and your wife now own the plots. A rescission by your mother would not be effective because you are now the owner. When your mother made a will in 2005, she would not name the burial rights because she no longer owned them. The residue clause covers everything not otherwise named in the will but would not cover burial lots because your mother did not own these lots any longer. Only in the event that your mother was still the owner would the cemetery lots fall within the residue.
Can I assist with what? If you are involved in a legal battle with your sister, then you would need local counsel. However, you should pay an attorney to review (a) a copy of the 2004 assignment from your mother and (b) the 2005 will to confirm that what I am saying is correct.
If sister claims these are her lots under the will then the attorney can send her a strongly worded letter explaining why they do not belong to her by virtue of the assignment.
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