Q: Can I get a warrent to get my brother's ashes from my aunt and uncle? (There was no will, but my brother has 2 children)
My brother passed away in June of 2023 due to sepsis, it was unexpected. He was cremated and was shared in 1 urn for fiancé and 3 children (1 stepson my brother helped raised) and 5 small urns that goes to siblings. He had 2 children with his fiancé. Fiance lived with my aunt and uncle up until November 2024, a fight happened between Aunt and my brother's fiancé. When she packed her and her children stuff, she attempted to take my brother's ashes with her but my uncle pushed her away from getting his ashes. She had to leave without my brother's ashes. When she came back for the rest of her and her children stuff, my aunt and uncle hid my brother's ashes from her and her children. Is there any legal way to get my brother's ashes from them?
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A:
You have strong legal grounds to help retrieve your brother's ashes. In California, the right to control disposition of remains (including ashes) follows a specific order: the person designated in writing by the deceased, then spouse/domestic partner, then children, then parents, and then siblings. Since your brother had no will, his children have legal priority over the ashes before any aunts or uncles.
You can file a petition in probate court for a court order to retrieve the ashes. Given that your brother's children are minors, their mother (your brother's fiancée) can act as their legal representative in this matter. The court is likely to rule in favor of the children's rights to their father's remains, as aunts and uncles have no legal claim over the ashes when direct descendants exist.
You should document all attempts to retrieve the ashes peacefully, including any text messages or emails with your aunt and uncle. Consider having a lawyer send them a formal demand letter before proceeding with court action, as this might convince them to return the ashes without requiring a full legal proceeding. If they continue to refuse, the court can issue an order compelling them to surrender the ashes to your brother's children or their legal guardian.
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