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How to Transfer Ownership of a Cemetery Plot
Thoughts of your eternal resting place might seem needlessly ghoulish, and transferring ownership of a cemetery plot to a family member might feel downright cruel. But death awaits us all, like it or not, and a population explosion coupled with inadequate space means we’re facing an international cemetery plot shortage. Cemetery plots are big business, and transferring ownership can be a significant gift, ensuring that the recipient has a secure eternal resting place.
The process of buying a cemetery plot is usually fairly straightforward, since cemetery plots are essentially pieces of real estate. Transferring the plot, though, can require a bit of finesse, since failing to properly transfer the plot might mean that the recipient has no place to be buried when the time comes.
Why Buying and Transferring Cemetery Plots is Different
Everyone who plans to be buried will eventually need a cemetery plot. For this reason, most states treat cemetery plots a bit differently from other forms of real estate, limiting the circumstances under which they can be bought or sold, controlling who can buy or sell the plots, or establishing protocols to ensure people have equal access to particularly desirable plots. For example, it’s common to purchase a plot in a specific row, rather than being able to seek out the specific individual plot of your choice.
Indeed, most states require that some portion of the cemetery plot’s price go to the maintenance and perpetual care of the cemetery and the plots contained therein. For this reason, the process of transferring ownership can be cumbersome. It’s a good idea to begin the process well before the person to whom you are transferring the plot needs it. And don’t forget to explore your own burial options, since the cemetery plot shortage means that transferring your plot to someone else could leave you without a plot of your own!
The Basic Transfer Process
One of the greatest challenges of buying, selling, and transferring cemetery plot ownership is that state and local laws vary so greatly. At some cemeteries, transferring ownership is a simple matter of finding a buyer and filing the right paperwork. At others, cemetery plot transfer is a government matter that requires approval of a government agency. For this reason, before you transfer your plot, you’ll need to review the following documents:
- The contract with the cemetery itself, which may outline the specific situations when you can transfer ownership of the plot.
- State and local ordinances governing cemetery plot transfers.
- Any contracts you have with another party, including contracts to sell or transfer the plot in return for services or other valuable goods.
It doesn’t matter if you’ve already accepted money for the plot, promised it to a family member, or even begun the process of transferring ownership. Without following the contract with the cemetery and your local and state laws, you may not be able to complete the sale.
Even something as seemingly trivial as buying a cemetery plot in a specific county or city can affect the sale process. In Newnan, Georgia, for instance, you can transfer a cemetery in a will. But outside of a legally valid will, you cannot sell or transfer ownership to another party without the permission of the City Manager. Additionally, would-be sellers must seek permission via a Cemetery Lot Transfer Form completed and submitted along with the deed transfer. Because the process varies so much and can be quite cumbersome, consider talking to a lawyer before transferring your plot.
The Role of Cemetery Management
Owning the deed to a cemetery plot does not make you the owner. Instead, it simply gives you a right to use the plot. In most cases, the cemetery management company remains the owner of the plot itself, so reviewing the company’s rules and regulations is critically important.
In most states, you can transfer ownership of a cemetery plot to a family member in your will. But if you intend to sell the plot, that may be another matter entirely. For instance, in New York, cemetery plot transfers are overseen by the Division of Cemeteries. The Division requires that owners offer the plot to the cemetery corporation first, at the price originally paid plus four percent simple interest from the date first purchased. Only if the cemetery corporation declines to buy the plot can you then transfer ownership to another party. And even then, you’ll need to seek the permission and approval of the Division of Cemeteries prior to commencing with the transfer.
When you opt to sell your cemetery plot, talk to the management of the cemetery first. A handful of cemeteries, particularly those owned by religious organizations, fall outside of state and local laws, and may establish their own procedures for buying, selling, and transferring land. Your contract may further stipulate that you must consult with the management company prior to transferring the plot. And, of course, notifying the management company of the transfer helps you iron out any problems before they become so severe they delay a burial.
Using the Right Deed
Because cemetery management companies are the rightful owners of cemetery plots, you’ll need to verify both that the ownership paperwork is legally valid, and that the cemetery management company will allow ownership to be transferred. This usually requires nothing more than a simple phone call, but your county clerk can verify for you whether or not the deed has been filed.
After you verify the deed and the right to transfer ownership, you will need to file paperwork in your county clerk’s office changing the owner’s name on the cemetery plot deed. This is a simple matter of altering the current ownership papers, and is often the least cumbersome part of the ownership transfer process. The transfer will not be complete until the paperwork is filed with the county clerk, and you have received permission from any regulatory body overseeing the plot.
How to Transfer Ownership of Cemetery Plot
Transferring Ownership of a Burial Plot
Why do people transfer cemetery ownership , what about transferring when the owner is deceased, 1. the deceased owner has a legitimate will, 2. the deceased owner has a letter of administration, 3. there is no legal will or letter of administration, what could the process of transferring cemetery ownership look like, to generalize, the transfer process could look something like this:, here are some tips on transferring cemetery property: , what can the transfer look like, what important details should be included in your documents and letters .
- Legal name and registered information of the owner and the purchaser
- The agreed upon transfer date and amount paid by the buyer
- Declaration that ALL rights are being transferred to the new owner
- Description of the plot and the rules governing it
- Declaration that the transfer is approved and within the rules of the state and the cemetery or religious organization
Finalizing the Transfer of Cemetery Plot Ownership
Grave Ownership Rights
How long do you have ownership over a grave?
Contrary to what many believe, graves are not eternally preserved in their current locations. According to the documentation, European people began reusing and repurposing ancient burial mounds as early as the very first centuries. Even in ancient times, it was standard practice to inter numerous individuals in one plot; thus, it is safe to assume that the practice of reusing graves is nothing new.
When you buy a grave in most cemeteries, you will also purchase the exclusive right to bury the deceased person in that grave. This arrangement will be on a leasehold arrangement, with the first term being thirty years.
This may be extended for additional five years for a total of an extra thirty years if renewed. This grants the owner the right to be buried inside that grave within that time, in addition to granting permission for anybody else to be buried there if there is still space available.
According to the guidelines of some cemeteries, they are in charge of the maintenance of the land. Additionally, approval from the owner is required before any kind of monument may be erected in that cemetery.
Proof of ownership of a gravesite
The issuance of a Grave deed may establish title to a cemetery site. This guarantees a dignified burial at a predetermined location. You will get a deed if you buy a burial site from a religious institution or a state-run cemetery. Learn more about these deeds in this post.
The owner or the owner’s executors or administrators may transfer the Grave Deed to another person in the event of the owner’s death. Still, the transfer is not official until it is recorded at the cemetery office, where you can find information and paperwork for making the transfer.
Title to a cemetery plot goes from its registered owner to his or her heirs or, in the absence of either, to the next of kin. ( Not sure wh o s i s n e x t o f k i n ? Find out in this post. ) Only the person whose name appears on the Deed of Grant as the registered grave owner may authorize grave-related activities such as reopening the grave for further burials, constructing a permanent monument, and carving inscriptions.
How to transfer grave ownership?
The typical ownership transfer requires two to three hours of staff time. It is also the responsibility of the staff to maintain and update the database and registrations of deceased individuals.
The representative of the person who has passed away is the one who is responsible for finding out who the actual owner is and then completing a Deed of Assent. If there is no valid will for the dead individual, ownership of the burial might be passed to a personal representative of the deceased person who is described in the letters of administration.
Before a burial may be used again or a monument erected for it, the ownership of the grave must often be transferred from the living or dead owner to another person. This is required before the tomb can be utilized. When transferring ownership, the procedure might differ based on the circumstances, and there is often a cost involved.
If the grave is no longer required, the owner of the exclusive right to burial may give up that right by executing a Deed of Surrender. The value of the surrender is equal to one-third of the current purchase price, as stated on the forms.
Only the portion of the lease that has not yet expired is included in any transfer of the Exclusive Rights of Burial that may occur. By signing a Deed of Assignment, the current owner of a grave may transfer their ownership rights to another person while they are still living.
Grave ownership laws
Two types of grave ownership are recognized by law: public and private. A private cemetery is solely used by one family or group of people, whereas a public cemetery is used by the whole community, a neighborhood, or a church. However, whether or not a cemetery is considered public depends on its actual usage by the public, rather than who owns the land.
The term “public cemetery” is used to describe a privately owned cemetery that offers many burial plots or sites for sale to the general public. A graveyard may be considered a public cemetery even if it is privately owned or managed so long as it is accessible to the general public for the burial of the deceased subject to reasonable limitations.
What are the exclusive rights of burial?
A formal deed is unnecessary to provide exclusive use of cemetery grounds property. Two or more people may hold a cemetery plot in common. If there is still room in the cemetery, the co-tenants of a burial lot have the right to be buried there in the order of their deaths. You don’t need permission from the other co-owners to bury your co-tenant in the shared space.
In certain cases, an easement may be gained by adverse possession if the prescriptive holders have used the cemetery lot in question solely, consistently, and uninterruptedly over time, with the owner’s knowledge, either express or implied.
As a matter of national policy, a cemetery plot cannot be divided up after corpses have been buried there. Although it is established law that a stranger to the tenancy has no legal right to be buried in a lot without the approval of all the co-tenants, when an interment has been made, the courts are hesitant to compel the removal of the corpse.
What can I put on a grave instead of flowers?
Families should not decorate with anything they would want to preserve if it were removed for safety or maintenance reasons. Besides the law, the weather is a factor that should be considered while deciding what kind of decorations to place on a tomb. Avoid using ornaments that might be ruined by the weather (such as paper or fabric)
Here are some things you can put aside from flowers:
- Decorated stones
- Stuffed Animal
The best action is to double-check with the cemetery administration before making final arrangements on the decor you want to put. Likewise, they should be able to fill you in on the ins and outs of their upkeep policies and any restrictions placed on seasonal decorations.
Also, think about if the decorations have any emotional meaning, how the weather could play a role, and whether there will be other visitors to the cemetery. For more ideas of what you can leave at a gravesite, read our What is a Grave post.
What happens if I have flowers delivered to a cemetery?
Your vendor has committed to sending you a picture of the flowers at the burial of your loved one after they have been delivered. This may be done once, regularly, or at certain times of year, such as for Mother’s Day, birthdays, engagements, or Christmas. While some vendors accept anytime orders.
The florist making the delivery might give you advice on what will be most fitting for the crematorium or the deceased’s faith and family’s preference. Only close relatives are permitted to place casket sprays or other flowers inside the casket as a last tribute to a deceased family member. We wrote more about funeral flowers in this post.
What is the best Styrofoam to use on silk cemetery flowers?
Because it is manufactured to retain water for extended periods, wet floral foam is the kind of floral foam that is most suited for use while dealing with flowers. You may begin by using a form already cut out for you or one you have cut out yourself.
The fresh flowers will keep their moisture for seven to ten days after being cut. Keep adding water to the container regularly to maintain the foam’s moisture level. After soaking the floral foam in water until it is completely saturated, you can either place it in a watertight container of your choice or use it in its natural state. At this point, you may begin to decorate it with cut flowers.
What is an excellent plant to put on a grave?
Daffodils, snowdrops, lilies, and other bulbs that bloom in the spring and summer, as well as hardy perennials like salvia, are well-behaved plants that can withstand the weather are the best greeneries you can put.
To improve upon this, consider opting for annual flowers and plants instead. Since they perish in the autumn freeze, the invasive problem should be solved almost entirely. In addition, the style may be updated annually or seasonally by using the deceased’s preferred plants.
Annual ornamental grasses like rubrum and the pine-scented, needle-like herb rosemary representing recollection are great options for creating a different touch.
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Readinform is a Wisconsin based writer for funerals explained. They have come to understand the struggles of death and loss. Through life experience they have gathered the knowledge to help others and answer questions related to the funeral industry. When not writing readyinform focuses on learning new things and exploring the differences society offers.
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Transfer of Ownership of Exclusive Right of Burial
Effecting a legally sound transfer of ownership is vitally important in order to protect your authority or company. It is imperative that you only allow a transfer of ownership to take place to the person or persons who are ENTITLED.
A transfer can be legally effected on the production of a Grant of Probate or Letters of Administration. If one or the other of these legal documents have not been issued a Statutory Declaration made by the lawful next of kin must be completed.
Did the owner leave a Will or were Letters of Administration issued? Use a search facility here .
Who is entitled to take over grave ownership? Find out about who inherits if no will is left here .
Form of Assignment Form of Assent of Executor Form of Renunciation Statutory Declaration
Deed of Exclusive Right of Burial
The ICCM runs a one-day training course covering the legal process of transferring burial rights in order to assist cemetery personnel to properly complete the legal process. Keep an eye on the Other Training page of this site for a course near to you.
If you would like to host a course please contact the National Office and we will do all the work required. There are no costs to hosts who will secure free places on the course. Details for ‘Hosts’ are also contained on the Other Training page .
- basic laws pertaining cemeteries
The Basic Laws Pertaining to Cemeteries
Americans have a hard time dealing with dying and death and often only deal with estate planning , elder care planning and selection of funeral arrangements when they have no choice, e.g. when death is imminent or already has occurred. The result can be both frustrating and expensive as people are required to make significant economic decisions when emotionally distraught and those decisions can result in tension within the family and long term economic commitments.
Too often this writer has seen families with few resources end up spending tens of thousands of dollars for funeral or cemetery arrangements when the deceased would have protested loudly at the “waste” and no one really determined what alternatives were available. No one in the family wants to be the one to object to the cost with the rest of the family looking on and the professionals in the field, many of whom are well meaning, are certainly not going to suggest less expensive alternatives.
Selecting cemeteries, indeed, knowing how they work and are regulated, is another area few people wish to confront, but the wise family will understand both the commitment and the legal protections inherent in utilizing the services of a cemetery.
It is not only expense. Occasionally, scandalous information comes out as to failure to bury the right person in the right plot or, even worse, selling the same plot over and over, the bodies literally piled upon each other. Is that merely breach of contract? Is it a violation of the law? This article discusses those issues and more.
A cemetery is a place where dead bodies and cremated remains are buried. It is a locale set aside, either by governmental authority or private enterprise. A public cemetery is open for use by the community at large while a private cemetery is used only by a small segment of a community or by a family.
Cemeteries can be the place where the final ceremonies of death are observed. These ceremonies or rites differ according to cultural practice and religious belief. The establishment of a cemetery involves the process of formally designating a tract of land for use for the burial of the dead. It must be set apart, marked, and distinguished from adjoining ground as a graveyard.
A cemetery is not only subject to the laws of ordinary property due to their inherently different nature. Most states have established rigorous laws that specifically apply to cemeteries. Private interests in the place of burial are subject to the control of public authorities, which have the right to require the disinterment of bodies if deemed necessary.
A columbarium is a building containing niches in which urns containing the ashes of the deceased after cremation are placed.
The law contemplates generally two categories of cemeteries, public and private . A public cemetery is one used by the general community, a neighborhood, or a church, while a private cemetery is one used only by a family or a small portion of the community. However, actual public use rather than ownership determines whether a cemetery is public. Thus, a cemetery, though privately owned or maintained, may be deemed a public cemetery if it is open, under reasonable regulations, to the use of the public for the burial of the dead. A cemetery, though privately owned, is properly classified as a “public cemetery” where it consists of a great number of burial plots or sites sold and for sale to the public. Conversely, a family burying ground has been defined by statute as one in which no lots are sold to the public and in which interments are restricted to a group of persons related to each other by blood or marriage.
Note that a municipal corporation may hold property in trust for a public burial ground or in a private or proprietary character as a private corporation. The Federal government provides burial locales for military and other selected federal personnel.
In Garland v. Clark , 264 Ala. 402, 405-406 (Ala. 1956), the court held that for a place to be called a public cemetery, “…the intention of the owner of the land to dedicate it for a public cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in the long-continued use of his lands for such purpose, are sufficient.”
Cemeteries are normally regulated on the State level.
There are normally statutory provisions which apply to privately operated cemeteries. For instance, Section 5 of the Act of 1903, Ill. Rev. Stat. ch. 21, para. 39 (1951), provides that when a cemetery is a privately operated cemetery, as defined in § 2 of the Cemetery Care Act, Ill. Rev. Stat. ch. 21, para. 64.1 et seq. (1951), enacted by the Sixty-fifth General Assembly, then such a cemetery association shall also comply with the provisions of the Cemetery Care Act. See Union Cemetery Ass’n v. Cooper , 414 Ill. 23 (Ill. 1953).
The Cemetery Care Act enacted in that state provides that these cemeteries are required to secure a license from the Auditor of Public Accounts before acquiring care funds. In order to secure such a license, detailed information as to personnel and finances must be given and the license may be refused if certain specified conditions are not met. A privately operated and licensed cemetery must file an annual report with respect to its care funds. This report must show the income to and disbursements from the fund and list the securities in which the fund is invested. The books of such cemeteries must be open at all times to inspection. In the administration of care funds, privately operated cemeteries are subject to examination, supervision, and regulation by the Auditor who may, upon certain conditions, revoke the license to handle care funds either temporarily or permanently. Before accepting care funds in connection with the sale of a burial space, a private authority must specify in writing the nature and extent of the care to be furnished, for which it must require the deposit of a given amount based upon the sale price or the size of the burial space. Except where excused by the act, these private associations are required to post a bond to insure the proper handling of care funds. Other states have similar laws.
A state may regulate the location of cemeteries through the exercise of its police power by statute directly regulating the location of cemeteries. In California, see Laurel Hill Cemetery v. San Francisco , 216 U.S. 358 (U.S. 1910). Such police power may be delegated to and exercised by political subdivisions or subordinate public corporations of the state, including municipal corporations or health authorities. See Seale v. Masonic Cemetery Asso ., 217 Cal. 286 (Cal. 1933).
With respect to governmental regulation of the location of cemeteries, aesthetic, health and property value considerations are of importance. Put simply having a cemetery next door can radically reduce the value of property since many buyers do not want to live next to cemetery. Often, the right to prohibit or limit the location of cemeteries within a certain district or area rests on the proposition that a burial within such district would be injurious to the public health. Some additional reasons for exercising the police power regarding the regulation of cemetery locations are:
- the public welfare in general.
- whether the establishment of a cemetery might disarrange the location of streets and highways and adversely affect civic enterprise.
- the prosperity of the community.
- the adequacy of existing cemetery facilities within a county.
- the character of the community in general. See Laurel Hill Cemetery v. San Francisco , 152 Cal. 464 (Cal. 1907); Alosi v. Jones , 234 Ala. 391 (Ala. 1937); Scovill v. McMahon , 62 Conn. 378 (Conn. 1892); Gordon v. Commissioners of Montgomery County , 164 Md. 210 (Md. 1933).
The right to prohibit or limit the location of cemeteries within a certain district or area often is claimed to rest on the proposition that a burial within such a district would be injurious to the public health. The regulations prohibiting the creation of new cemeteries or the interment of human bodies in established cemeteries located within a densely populated city area are generally valid, if they do not operate unreasonably or arbitrarily. However, similar regulations in sparsely settled localities have been held or recognized to be invalid, where it was not shown that the burials were calculated to impair the public health through their close proximity to housing. The permission to establish a cemetery cannot be made dependent on the arbitrary will of the officers or governing body of that particular place. The principles upon which a decision is to be made must be clearly established.
Regulations as to the location of cemeteries are valid if they do not constitute an impairment of the obligation of contract , do not constitute a violation of the constitutional guaranties of due process or equal protection of the laws, or against the taking of private property for public use without just compensation, or constitute improper delegation of authority.
Abandonment of Cemetery: Legal Effect
A property which has been dedicated or used for cemetery purposes may be abandoned so far as such purposes are concerned, apart from any rights of interested parties to have a cemetery continued as such. See Mayes v. Simons , 189 Ga. 845 (Ga. 1940). The question of abandonment can be inferred from the acts or recitals of the parties, interpreted in the light of all the surrounding circumstances. However, a cemetery is not abandoned as long as it is kept and preserved as a resting place for the dead with anything to indicate the existence of graves, or as long as it is known and recognized by the public as a graveyard. The fact that for some years no new interments have been made and that the graves have been neglected does not operate as an abandonment and authorize the desecration of the graves, where the bodies interred in a cemetery remain therein and the spot awakens sacred memories in living persons. See Dangerfield v. Williams , 26 App. D.C. 508 (D.C. Cir. 1906).
Matters going to the question of abandonment are:
- the actual condition of the cemetery,
- whether the identity of the cemetery has in fact been destroyed, and
- whether the cemetery is recognizable and known to the general public.
Where the family has ceased to visit the cemetery and they have so long neglected to care for it that the ground is no longer recognizable as a cemetery, the family burial ground has been abandoned. Merely because further interments in a cemetery become impossible, it does not lose its character.
However, a private cemetery may be considered abandoned, where through changed conditions or the passage and ravages of time, its identity is destroyed. Tracy v. Bittle , 213 Mo. 302 (Mo. 1908)
This issue can become critical for developers who wish to use the land for new purposes and confront the question as to whether they have the right to alter its use despite its past status.
There is a presumption in favor of leaving the cemetery undisturbed on an application for cemetery relocation. The governing authority must balance the applicants’ interest in disinterment with the public’s and the descendants’ interest in the value of the undisturbed cultural and natural environment. See Hughes v. Cobb County , 264 Ga. 128 (Ga. 1994).
By the claim of a burial lot owner that he/she has a freehold interest in the lot, a cemetery owner will not necessarily be prevented from abandoning its cemetery and from removing the remains of deceased persons buried therein. Petition of First Trinity Evangelical Luthern Church, 214 Pa. Super. 185 (Pa. Super. Ct. 1969). To preserve the cultural heritage of the county and the cemetery, evidence of a lack of maintenance and inappropriate surroundings will support the relocation of a cemetery site.
The right to occupy land with a cemetery and maintained as such is subject to the reasonable exercise of the police power. However, where land becomes no longer suitable for the cemetery use to which it was dedicated because of the surrounding circumstances or changed conditions, the discontinuance of such use may be required by the legislature or a municipality. As a good example, in large cities it becomes necessary to prohibit further interments in certain cemeteries on account of their menace to the public health and also to require the removal of the bodies interred therein. In the abolishment of cemeteries, the legislature has the same power as it has in their establishment. Whenever it becomes necessary, the legislature may by statute direct the discontinuance of a cemetery and the removal of the bodies. It may delegate its power to a municipality, which may enact an ordinance to effect the same result. See Masonic Cemetery Ass’n v. Gamage , 38 F.2d 950 (9th Cir. Cal. 1930).
In this regard, the police power must not be exercised arbitrarily or unreasonably. Where there is a public necessity for the discontinuance, the power to require the discontinuance of the use of a cemetery, necessarily includes the power to determine whether such public necessity exists. The determination of the legislature is conclusive upon the courts.
When the use is terminated and the cemetery abandoned, there is a reverter to the original donors or their legal representatives, free of such use. This rule applies to both statutory and common-law dedications. Reinterments in land that have once been definitely abandoned as a cemetery do not have the effect of preventing a reverter. However, a different situation exists where there is an actual conveyance of lands. In such situations, whether the land reverts to the grantor on the abandonment of the cemetery depends on whether the conveyance was absolute. If so, there is no right of reverter or it constituted a conveyance on condition that the use of the premises for a cemetery be continued. Thereafter, the grantor or one succeeding to his/her rights is revested with title on a breach of the condition.
All this necessarily means that the average family confronting the issue of the permanence of their loved one remaining in the plot face the question of what rights they really have.
Rights to Lots and Vaults
A cemetery lot owner’s rights are contractual and subject to the ordinary rules of contract law. In nearly all jurisdictions, one who purchases and has conveyed to him/her a lot in a public cemetery does not acquire the fee to the soil. He/she acquires only a right of burial therein which has been variously designated as an easement or as a license or privilege. Ebenezer Baptist Church, Inc. v. White , 513 So. 2d 1011 (Ala. 1987).
Put simply, this means you do not own the land or have ownership rights of any type to any particular land. Instead, you have an easement or license to use the land for the purpose of keeping your loved one’s remains there.
It often can only be extinguished by abandonment. When a lot is purchased, the rights of the purchaser are expressed or deemed to be subject to the charter and the rules and regulations or bylaws of a cemetery association or corporation company. However, the rules and regulations adopted by the cemetery proprietor must be uniform and reasonable. If regulations are unreasonable, a person’s agreement to be bound by the rules and regulations is ineffectual. See Hollywood Cemetery Asso. v. Powell , 210 Cal. 121 (Cal. 1930).
To confer an exclusive right to use a cemetery lot, a formal deed is not necessary. Provided the prescriptive holders use the cemetery lot exclusively, continuously, and uninterruptedly, with the actual or presumptive knowledge of the owner, an easement can even be acquired by adverse possession . A cemetery lot may be held by two or more persons in common. Provided there is burial space still available, co-tenants of a burial lot hold it with the right to be buried therein in the order in which they die. The consent of the other co-owners to the burial of their co-tenant therein is not necessary.
Although it is recognized that a stranger to the tenancy may not, as a matter of right, be buried in a lot without the consent of all the co-tenants, where an interment has been made, the courts are reluctant to order the removal of the body. Usually, a burial lot cannot be made subject to partition after bodies have been interred therein as a public policy rule. Locke v. Locke , 291 Ala. 344 (Ala. 1973)
In some jurisdictions, after an interment is made in a burial lot held by an individual owner, the lot becomes inalienable, except by specific devise, or as provided by statute. Moreover, the rules of the company may provide against alienation or subdivision, or there may be an express provision in a conveyance of a cemetery lot to the effect that it may not be transferred except with the consent of the cemetery company. However, an owner may alienate or transfer his/her rights in a cemetery lot prior to any interment therein, in the absence of any regulations, statutes, or other restrictions to the contrary. In the absence of an assignment of sites by the purchaser of a family cemetery plot before death, the lineal descendants of the deceased purchaser have an easement in the unused sites in ground dedicated to family burials. Fraser v. Tenney , 987 S.W.2d 796 (Ky. Ct. App. 1998)
Since the right of the owner of a burial lot has been designated as an easement or license, in the absence of statutory restrictions or contractual conditions to the contrary, the right is one which is devisable and inheritable. The right to devise a burial lot may be limited by statutory provisions restricting the right of alienation and providing for the descent of the lot, upon the death of the proprietor, to his/her heirs at law. A burial lot not specifically devised does not pass under a general or residuary devise, absent a statute. It passes to the heirs at law of the testator as if the testator had died intestate. If the result would be the disruption of the character of the lot as a family burial plot, the lot can be deemed not to pass by will. Robertson v. Mt. Olivet Cemetery Co., 116 Tenn. 221 (Tenn. 1906).
Where a lot is not devised, the heir takes such property right impressed with and subject to the use to which the ancestor devoted it in his/her lifetime, although the title descends to the heirs at law, each of whom takes an undivided interest and the right of sepulture therein. Thus, the heir takes subject to a trust for the benefit of the family.
A burial lot in which bodies have been interred cannot be subject to a mortgage. Moreover, an equitable lien will not be established against such a lot for the cost of materials used in improving it. In some jurisdictions, burial lots are exempt from execution or attachment by statute. United Cemeteries Co. v. Strother , 332 Mo. 971 (Mo. 1933)
Conclusion and Practicalities
Pouring through a contract relating to rights or reading the By Laws of the Cemetery Association are usually not what a grieving family wishes to do. But it is vital to note that one is not “buying land” with inalienable rights when one obtains a lot or vault. The contract and the bylaws do delineate the rights and the ability of the cemetery to be altered, to close, or to move one’s loved one.
This is not inherently unreasonable. Society changes, land use changes, families move away, needs change. Virtually every major city had many cemeteries on their outskirts that are now, due to the growth of cities, downtown, and with few exceptions, the land is needed for development and the cemeteries end up being moved.
As the population grows and land becomes increasingly scarce near cities, one can expect this process to repeat and it is unlikely in the extreme that the cemetery plot you select today will be in existence in two hundred years.
This is difficult for most people and families to confront. We all like to think that the cemetery is forever, that in a thousand years our relatives can still visit the plot, that the deceased will sleep here forever.
In practical terms, it means read the cemetery documents…all of them…and that includes understanding what rights they have to relocate, close the cemetery, etc. Find out precisely what you are buying before you buy it and if you are too upset at the time to do that, find a friend or professional to do it for you.
Many of our clients elect burial of ashes at sea precisely to avoid this entire issue. When asked how they will visit the grave, one client stated, “Every time I look at the sunset and watch the waves, I am visiting the grave. That’s what Dad would have loved in any event.”
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A cemetery lot owner’s rights are contractual and subject to the ordinary rules of contract law[i]. In nearly all jurisdictions, one who purchases and has conveyed to him/her a lot in a public cemetery does not acquire the fee to the soil. He/she acquires only a right of burial therein which has been variously designated as an easement or as a license or privilege[ii]. It can be extinguished only by abandonment[iii]. When a lot is purchased, the rights of the purchaser are expressed or deemed to be subject to the charter and the rules and regulations or bylaws of a cemetery association or corporation company[iv]. However, the rules and regulations adopted by the cemetery proprietor must be uniform and reasonable. If regulations are unreasonable, a person’s agreement to be bound by the rules and regulations is ineffectual[v].
To confer an exclusive right to use a cemetery lot, a formal deed is not necessary. Provided the prescriptive holders use the cemetery lot exclusively, continuously, and uninterruptedly, with the actual or presumptive knowledge of the owner, an easement can be acquired by adverse possession.[vi] A cemetery lot may be held by two or more persons in common[vii]. Provided there is burial space still available, co-tenants of a burial lot hold it with the right to be buried therein in the order in which they die. The consent of the other co-owners to the burial of their co-tenant therein is not necessary[viii]. Although it is recognized that a stranger to the tenancy may not, as a matter of right, be buried in a lot without the consent of all the co-tenants, where an interment has been made, the courts are reluctant to order the removal of the body[ix]. A burial lot cannot be made subject to partition after bodies have been interred therein as a public policy rule[x].
In some jurisdictions, after an interment is made in a burial lot held by an individual owner, the lot becomes inalienable, except by specific devise, or as provided by statute[xi]. Moreover, the rules of the company may provide against alienation or subdivision, or there may be an express provision in a conveyance of a cemetery lot to the effect that it may not be transferred except with the consent of the cemetery company[xii]. However, an owner may alienate or transfer his/her rights in a cemetery lot prior to any interment therein, in the absence of any regulations, statutes, or other restrictions to the contrary[xiii]. In the absence of an assignment of sites by the purchaser of a family cemetery plot before death, the lineal descendants or parentelic relatives of the deceased purchaser have an easement in the unused sites in ground dedicated to family burials[xiv].
The right of the owner of a burial lot has been designated as an easement or license. In the absence of statutory restrictions or conditions to the contrary, the right is one which is devisable and inheritable[xv]. The right to devise a burial lot may be limited by statutory provisions restricting the right of alienation and providing for the descent of the lot, upon the death of the proprietor, to his/her heirs at law[xvi]. A burial lot not specifically devised does not pass under a general or residuary devise, absent a statute. It passes to the heirs at law of the testator as if the testator had died intestate[xvii]. If the result would be the disruption of the character of the lot as a family burial plot, the lot is not deemed to pass by will[xviii].
Where a lot is not devised, the heir takes such property right impressed with and subject to the use to which the ancestor devoted it in his/her lifetime, although the title descends to the heirs at law, each of whom takes an undivided interest and the right of sepulture therein[xix]. Thus, the heir takes subject to a trust for the benefit of the family[xx]. A burial lot in which bodies have been interred cannot be subject to a mortgage. Moreover, an equitable lien will not be established against such a lot for the cost of materials used in improving it[xxi]. In some jurisdictions, burial lots are exempt from execution or attachment by statute[xxii].
[i] Spencer v. Flint Memorial Park Ass’n , 4 Mich. App. 157, 144 N.W.2d 622 (1966).
[ii] Ebenezer Baptist Church, Inc. v. White , 513 So. 2d 1011 (Ala. 1987)
[iii] Boyd v. Brabham , 414 So. 2d 931 (Ala. 1982)
[iv] Hollywood Cemetery Asso. v. Powell , 210 Cal. 121 (Cal. 1930)
[v] Nicolson v. Daffin , 142 Ga. 729 (Ga. 1914); Bash v. Fir Grove Cemeteries, Co., 282 Ore. 677 (Or. 1978)
[vi] Ebenezer Baptist Church, Inc. v. White , 513 So. 2d 1011 (Ala. 1987)
[vii] Anderson v. Acheson , 132 Iowa 744 (Iowa 1907)
[viii] Silvia v. Helger , 75 R.I. 397 (R.I. 1949); Mohnkern v. Gennert , 136 N.J. Eq. 86 (Ch. 1945)
[ix] McAndrew v. Quirk , 329 Mass. 423 (Mass. 1952); Lewis v. Walker’s Exrs, 165 Pa. 30 (Pa. 1894)
[x] Locke v. Locke , 291 Ala. 344 (Ala. 1973)
[xi] Masonic Cemetery Ass’n v. Gamage , 38 F.2d 950 (9th Cir. Cal. 1930); Gallaher v. Trustees of Cherry Hill Methodist Episcopal Church, Inc ., 42 Md. App. 186 (Md. Ct. Spec. App. 1979); In re Estate of Turkish , 48 Misc. 2d 600 (N.Y. Sur. Ct. 1965)
[xii] Hollywood Cemetery Asso. v. Powell , 210 Cal. 121 (Cal. 1930); In re Seattle, 59 Wash. 41 (Wash. 1910)
[xiii] Spencer v. Flint Memorial Park Asso ., 4 Mich. App. 157 (Mich. Ct. App. 1966)
[xiv] Fraser v. Tenney , 987 S.W.2d 796 (Ky. Ct. App. 1998)
[xv] Quesenberry v. Meginniss , 70 Md. App. 320 (Md. Ct. Spec. App. 1987); Boyd v. Brabham , 414 So. 2d 931 (Ala. 1982)
[xvi] Masonic Cemetery Ass’n v. Gamage , 38 F.2d 950 (9th Cir. Cal. 1930)
[xvii] McPherson v. McKay , 205 Ark. 1135 (Ark. 1943)
[xviii] Robertson v. Mt. Olivet Cemetery Co., 116 Tenn. 221 (Tenn. 1906)
[xix] Wright v. Hollywood Cemetery Corp ., 112 Ga. 884 (Ga. 1901); Kerlin v. Ramage , 200 Ala. 428 (Ala. 1917).
[xx] McAndrew v. Quirk , 329 Mass. 423 (Mass. 1952)
[xxi] Locke v. Locke , 291 Ala. 344 (Ala. 1973); Kerlin v. Ramage , 200 Ala. 428 (Ala. 1917)
[xxii] United Cemeteries Co. v. Strother , 332 Mo. 971 (Mo. 1933)
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Section 2108.70 | Assignment of rights regarding disposition of remains.
(A) As used in this section and sections 2108.71 to 2108.90 of the Revised Code:
(1) "Adult" means an individual who is eighteen years of age or older.
(2) "Declarant" means an adult who has executed a written declaration described in division (B) of this section.
(3) "Representative" means an adult or a group of adults, collectively, to whom a declarant has assigned the right of disposition.
(4) "Right of disposition" means one or more of the rights described in division (B) of this section that a declarant chooses to assign to a representative in a written declaration executed under that division or all of the rights described in division (B) of this section that are assigned to a person pursuant to section 2108.81 of the Revised Code.
(5) "Successor representative" means an adult or group of adults, collectively, to whom the right of disposition for a declarant has been reassigned because the declarant's representative is disqualified from exercising the right under section 2108.75 of the Revised Code. Each successor representative shall be considered in the order the representative is designated by the declarant.
(B) An adult who is of sound mind may execute at any time a written declaration assigning to a representative one or more of the following rights:
(1) The right to direct the disposition, after death, of the declarant's body or any part of the declarant's body that becomes separated from the body before death. This right includes the right to determine the location, manner, and conditions of the disposition of the declarant's bodily remains.
(2) The right to make arrangements and purchase goods and services for the declarant's funeral. This right includes the right to determine the location, manner, and condition of the declarant's funeral.
(3) The right to make arrangements and purchase goods and services for the declarant's burial, cremation, or other manner of final disposition. This right includes the right to determine the location, manner, and condition of the declarant's burial, cremation, or other manner of final disposition.
(C)(1) Subject to division (C)(2) of this section, a declarant may designate a successor representative.
(2) If a representative is a group of persons and not all of the persons in the group meet at least one criterion to be disqualified from serving as the representative, as described in section 2108.75 of the Revised Code, the persons in the group who are not disqualified shall remain the representative who has the right of disposition.
(D) The assignment or reassignment of a right of disposition to a representative and a successor representative supercedes an assignment of a right of disposition under section 2108.81 of the Revised Code.
Available Versions of this Section
- October 12, 2006 – House Bill 426 - 126th General Assembly [ View October 12, 2006 Version ]
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Exclusive right of burial.
When you buy a grave at Merton & Sutton Joint Cemetery, London Road Cemetery, or Gap Road Cemetery, what you are actually buying is the Exclusive Right of Burial for a specific period:
- 50 or 75 years for a coffin or casket grave
- 25 or 40 years for a cremation remains grave
You are not buying the grave freehold or the grave space: it is more like purchasing a lease. The ownership of the grave and the cemetery land remains with us. However, Exclusive Right of Burial will be issued to the named person stated on our interment form and can only be purchased when arranging a burial. A Deed of Grant will also be issued by us at the same time.
Only the registered owner has the right to allow a burial to take place in the grave.
No memorial may be placed on the grave without the written permission of the grave owner during the period of the Exclusive Rights of Burial. If you are the registered owner, you have the automatic right to be buried in the grave. You may also allow others to be buried in the grave (space permitting).
Ownership of the Exclusive Right of Burial is very important. Ownership can be transferred either during the owner's lifetime or after their death. The procedure for transferring the ownership is detailed below.
The Exclusive Rights of Burial may be renewed for a further term at the end of the lease but please contact the cemeteries office for the fee.
The Council's and the Cemetery Board's records contain the details of the registered grave owners. However, it is important that the grave owners keep safe their Deed of Grant. The Council and the Cemetery Board issues this document when the grave is first purchased and should be produced for each burial. Possession of the Deed does not in its self show ownership of the Exclusive Rights.
Transfer of ownership of the Exclusive Right of Burial
In the following circumstances transfer of the ownership will be needed:
- if the registered owner decides to assign the grave to someone else
- if an application is made for a burial in the grave but the registered owner is deceased
- if an application to place a memorial or additional inscription on the grave is made but the registered owner is deceased
- if the registered owner has recently died. This makes future arrangements easier if there is a living registered owner The Council and the Cemetery Board must obey the law relating to ownership of graves and burials. Where the owner has previously been buried, then without exception a new owner must first be registered to re-open a grave for burial or place a memorial or additional inscription upon a memorial.
- When considering transferring ownership of a grave, it is important to be aware that it is against the law to open a grave for burial including a burial of cremated remains or to place cremated remains upon the surface of a grave without the written permission of the registered owner, unless the burial is for the grave owner.
- The law regarding transfer of grave ownership
Transferring grave ownership when the current owner is still alive
The grave owner can:
- transfer the Exclusive Rights of Burial during their lifetime to another individual or add an additional owner
- surrender the Exclusive Rights of Burial if the grave has not been used for burial. The surrender value being the original purchase price as specified on the Deed of Grant
In both circumstances the Assignment of Exclusive Right of Burial Form needs to be completed.
Deciding grave ownership where the owner has died
The procedure for establishing grave ownership when the original owner has died depends upon whether there is a will.
Please refer to the Types of transferring rights below for an explanation of the different terms used.
Deceased left a valid will
If the deceased grave owner has made a valid will and left an estate of sufficient value to require the Grant of Probate to executors, ownership of the grave can be transferred to the executor. The applicant must produce a sealed copy of the Grant of Probate and complete the Assent of Executor or Administration form .
If the estate is not of sufficient value, ownership may be transferred to the executor named in the will as long as they have a Statutory Declaration and can produce the will. It is then the executor's responsibility to identify the correct person for the transfer of ownership and assent the transfer by completing an Assent of Executor or Administration form .
No or invalid will but a Grant of Letters of Administration has been obtained
If there is no will, or the will is not valid, and the estate is of sufficient value as to require a Grant of Letters of Administration, ownership of the grave can be transferred to the personal representative of the deceased.
The applicant must produce a sealed copy of the Grant of Letters of Administration Form and complete the Assent of Executor or Administration form. It is then the applicant's responsibility to identify the correct person for transfer of ownership and agree to it by completing an Assent of Executor or Administration form .
Where a family dispute results in a stalemate and relevant consents are withheld, ownership cannot be transferred. Transfer can only happen if the next of kin reach an agreement between themselves.
No will and no Letters of Administration: deceased dies in intestate
If there are no executors or Letters of Administration have not been granted, the rules of intestacy apply as laid down in the Administration of Estate Act 1925.
The applicant for transfer of ownership should complete a Statutory Declaration. Statutory Declarations are legal documents produced by us and must be signed in the presence of a Magistrate or Commissioner for Oaths.
The Statutory Declaration should clearly set out the facts regarding the original purchase of the Exclusive Rights of Burial, the death of the registered owner, intestate or otherwise and the relationship of the applicant to the registered owner. The original Deed of Grant and a certified copy of the owner's death certificate should accompany the Statutory Declaration.
Where the Deed has been lost, suitable wording should be incorporated within the declaration to that effect. It is essential that the written agreement of all the next of kin of the deceased owner must also be obtained for the "transfer of ownership" and attached to the Statutory Declaration. The following are examples of many of the possible circumstances:
Types of transferring deeds ownership
Assignment of exclusive right of burial.
Used by a living owner to transfer or change the ownership of the exclusive Right of Burial i.e. to transfer to new owner or add an additional owner.
Grant of Probate
Granted to the executor/s of a Last Will and Testament once a document has been proven in Court. To be legally acceptable we can only accept sight of a "SEALED" Grant; i.e. it must bear the embossed seal of the court. An Assent of Executor of Administration form will need completing.
Letters of Administration
When a deceased person dies intestate then the next of kin can apply to the Courts to be made Administrator of the estate. An Administrator receives the same powers to administer the estate of the deceased as an executor.
Assent of Executor or Administrator
Used to transfer ownership from an executor or administrator after ownership has been transferred into their name by production of Probate or Letters of Administration.
Used to transfer ownership from a deceased owner when no official documents have been issued. Declarations can be either based on a Will that did not go to probate, claiming ownership by the executor or by the Next of Kin if the deceased left no will. Please contact the cemeteries office to discuss the Statutory Declaration.
Form of Renunciation
Form of Renunciation
Used together with a Statutory Declaration when grave is being claimed by more than one person i.e. the deceased may have three children and next of kin, and one or more of those children wishes to give up their Rights to the ownership. NB The Council and the Cemetery Board wishes to advise that due to Administration Restrictions we only accept a maximum of TWO owners.
All certificates supplied with transfer applications must be originals or certified copies.
(NB Birth certificates supplied for identification in a Deed Transfer must be a full birth certificate and not a short birth certificate.)
Useful information to help you transfer the ownership of a grave
How to get a copy of a Death Certificate
The National Archives
You will need to know the full names, date and place of death. If this is not known, you can search the index of deaths from 1837 until the present day, at the:
National Archives Kew Richmond Surrey TVV9 4DU. Telephone 020 8876 3444 www.nationalarchives.gov.uk
The Register Office
If the death was within the last 18 months, you can ask for a copy death certificate from the Register Office for the area in which the death occurred. You can get a copy certificate from 1836 to the present day from The General Register Office (G.R.0). Copies of death certificates can also be ordered online
How to get a copy of a Will, Probate or Letters of Administration
If you need to find out if a Will was made, you can search the index to all Wills at the National Archives at Kew www.nationalarchives.gov.uk
The Probate Service
To get a copy of a Will, Grant of Probate or Letters of Administration, you can write to:
The York Probate Sub Registry First Floor, Castle Chambers, Clifford Street, York, YO1 9RG
There is a small fee. A copy is usually provided within 21 days of your request. The full name of the deceased, date of death and last known address must be provided. You cannot request a copy of any Will, Grant of Probate or Letters of Administration by telephone.
You can also get a copy of any document in person by visiting
First Avenue House, 42-49 High Holborn, London WC1V 6NP. Telephone 020 7947 6000/6939
HM Courts and Tribunals Service Website
Please note that any document produced for a transfer of grave ownership should show the embossed area of the seal, or be a certified copy of the original.
Find a will (GOV.UK website)
Fees and charges
The transfer of Grave Ownership is handled by the Cemetery Office, and there is a fee payable. You can contact the Cemetery Office on 020 3876 8806 or email [email protected] to enquire about the current fee applicable. Payments are made payable to idverde Ltd
Transferring of ownership at London Road Cemetery, Gap Road Cemetery or Church Road Cemetery
If the grave owner is not deceased and is a resident of the Borough. When a request for a transfer of ownership is required by a non-resident there will be a charge for the transfer fee plus an additional non-resident’s fee .
Transferring ownership at Merton & Sutton Joint Cemetery
If the grave owner is not deceased and is a resident of either London Borough of Merton or the London Borough of Sutton
When a request for a transfer of ownership is required by a non-resident there will be a charge for the transfer fee plus an additional non-resident’s fee .
We recognise that getting this information together may be difficult and the cemeteries office will do all they can to try to help whilst ensuring all the legal requirements are met. The Cemetery Office staff have received training on this important issue.
i dverde ltd Cemeteries Office (visits are by appointment only) Cheam Depot Cheam Park Tudor Close Cheam SM3 8QS
Tel: 020 3876 8806 Email: [email protected]
To find out more about the Section 114 Report, visit our Section 114 page.
Grant of exclusive Right of Burial
Exclusive right of burial.
Whilst ownership of an Exclusive Right of Burial for a grave does not give any ownership whatsoever in respect of actual land, it does give the owner of the Deed the right to:
- Be buried in that grave
- Authorise further burial(s) in that grave (where space is available), or the interment or scattering of cremated remains in or over that grave
- Erect or place a memorial on that grave subject to the Rules and Regulations of the City Council relating to memorialisation
- Have inscriptions/additional inscriptions placed on a memorial on that grave subject to the Rules and Regulations of the City Council relating to this matter Possession of a Deed does not necessarily give the person in possession ownership of Exclusive Right of Burial. Where the owner is deceased, subsequent ownership depends upon whether the deceased person left a valid Will. The law concerning this matter can be very complex and it is strongly advised that a Solicitor be consulted to establish new ownership. Ownership of a Deed may also be transferred or assigned by use of a form (Declaration and Application in respect of the transfer of Assignment of an Exclusive Right of Burial) obtainable from a Cemetery Officer
- NB. The Deed of Exclusive Right of Burial, like any other Deed, is an important document and should be kept in a safe place
- (a) On the purchase of the Exclusive Right of Burial in a grave, a Deed of Grant shall be issued to the purchaser whose name shall be registered
- (b) N.B. The parents of children or stillborn babies buried in the Babies Section at Northern or Southern Cemetery may not purchase the Exclusive Right of Burial
- (c) The Exclusive Right of Burial shall extend for 50 or 99 years from the date of purchase. The right may be extended for further periods on payment of the fees then applicable
- (d) The transfer or assignment of a Right of Burial in a grave must be notified to the Wilford Hill Administration team who will enter the transfer in the Register of Grants maintained upon the production of the Deed
- (e) Where no interment has taken place in a purchased grave the Council may agree to repurchase the grave. In such cases, the Council will pay the original purchase price
- (f) Notice for the interment or strewing of cremated remains must be accompanied by the Certificate issued by the Crematorium where the cremation took place
- (g) Persons arranging for burial in a non-private grave acquire no rights other than that of making a single interment in a grave
- The Nottingham Funeral
- Appeal to trace relatives of deceased