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In the past couple of months, our column has
examined some of the issues to consider when preparing an estate
plan. We have pointed out potential pitfalls and offered a
myriad of reason to consult an experienced estate planning
attorney. Some of the issues we have discussed include making
decisions regarding distributing property to your heirs, tax
planning, specific considerations with respect to end of life
decisions and designating agents to control health care and
financial decisions should you be unable to make those decisions
yourself. We have only scratched the surface with respect to
all of the reasons it is important to have a comprehensive and
well thought-out estate plan. As you navigate the estate
planning waters, you will also find that there are many hidden
issues which, without proper guidance from an experienced
attorney, too often come to light for the family once a person
is deceased and has overlooked certain issues in their estate
planning.
One of those “hidden” issues is the ownership
structure of cemetery plots regardless of whether the plot is in
the ground, in a crypt or some other type of purchased right
such as scatter rights. Many are confused by what they actually
own when purchasing a cemetery plot. Others find difficulty in
utilizing that plot the decedent or family holds when it has
been passed down through many generations of estates. The
ownership chain becomes substantially fractionalized and
unclear.
In combating these problems, the first
important issue is to clearly understand what you own when you
purchase a cemetery plot. The purchase of a plot does not
transfer to the purchaser any title or interest in the land or
in a crypt space. The Cemetery will continue to own the land
and crypt at all times. When you purchase a plot or crypt, you
are simply purchasing the privilege of burial or entombment
within the cemetery. One easy way to understand this is to
remember that you are not paying property taxes on the land. If
you actually had ownership in the land, you can bet you would
receive a tax bill from the appropriate government authorities.
Despite the fact that the owner of a plot
does not own title or any other interest in the underlying land,
there are too often problems with the chain of ownership for the
rights to the plot. Under existing law, if the owner of a
cemetery plot dies without making an outright disposition of the
plot in his or her will, the interest in the plot often becomes
fractionalized. Under the terms of many wills, the plot will be
distributed to many heirs in varying shares based on the terms
of each will. If there is no will, the state will step in and
distribute the plot under the laws of intestate succession.
What the heck does all of that mean? Very simply, under
Colorado law, if the rights in the plot are not devised to one
specific person, the plot often gets divided equally among
multiple heirs. The worst case scenario is when the decedent
holds one unused plot, following their burial, and that unused
plot is now controlled equally by multiple heirs. Sound like a
potential mess? It is! Imagine the poor folks at the cemetery
being on the receiving end of multiple family members trying to
determine who will actually get to use the plot, or have the
right to decide who gets to use the plot. They all own some
share in the plot, so they all have a say, right?
How do you avoid a mess such as this? Very
simply, transfer the ownership in the plot to a trusted friend
or family member in advance of your death. The next best
recommendation is to devise the plot to one specific person in
your will. What if I don’t have a will – many of you ask– then
you are back to the very likely scenario of fractionalized
ownership in the plot.
There is a mechanism for the heirs to
transfer ownership after the decedent passes, but it requires
the agreement of all the heirs. I am sure you can imagine just
as many scenarios where this might be impossible. The mechanism
is called an “Affidavit of Heirs,” and it is incumbent upon the
heirs of the “original owner” to settle the estate and execute a
sufficient affidavit delineating who now owns the rights to the
plot. Sounds simple, but you know as well as we do that
families don’t always agree. Will your family agree? Do you
have a plot that you want to ensure is protected through proper
planning?
For more information on properly devising
cemetery plots and interests, or to discuss your overriding
estate plan or planning needs, please visit our website at
www.TheTiptonLawFirm.com or contact an estate planning
attorney at:
The Tipton Law Firm
3200 Cherry Creek South Drive, Suite 650
Denver, Colorado 80209
303-220-8428 |
