Foresight on 
Written by the lawyers of WRW Legal, PLLC: Wendy Russell Wiener, Lauren Pettine and Hank Thompson.
Unclaimed cremated remains: a problem for so many funeral homes and crematories. I would be surprised if even a handful of my clients did not have a storage closet containing unclaimed cremated remains. Those unclaimed cremated remains are often the result of inaction by a former owner of the funeral home or crematory. Buyers, however, have caught on to the sticky problem of unclaimed cremated remains and will often stall a transaction while the cremated remains are handled. We’ve even seen a transaction fall apart because of the inability of the Seller to address the dozens of unclaimed cremated remains on hand.
The problem of unclaimed cremated remains is not unavoidable. In fact, there is a law or rule in nearly every state which very clearly gives licensees direction as to how to avoid long term storage of unclaimed cremated remains.
In broad terms, most state laws contain something like this: If the authorizing agent has not retrieved or arranged for final disposition of the cremated remains within XX days after cremation, funeral home or crematory may dispose of the cremated remains in a lawful manner.
Unfortunately, many (dare I say most) legacy licensees are uncomfortable following the laws. However, failure to follow the laws is not the safer option, though to many it feels like it is. The reluctance to dispose of cremated remains, especially in an unrecoverable way, is what has populated 100s of funeral home and crematory storage areas with unclaimed cremated remains, often from cremations that occurred decades before. And, at least one jury returned a multimillion dollar verdict for a family when a funeral home could not find its loved one’s cremated remains after having not retrieved them for more than five years.
Because the law directs and protects licensees as they dispose of unclaimed cremated remains, every licensee should be undertaking a monthly review of their cremated remains to determine which are unclaimed, sending notifications where the law requires, and disposing of the cremated remains. Records of the notice and disposal should be created and maintained. For the backlog of stored cremated remains, every licensee should undertake to inventory them, review associated files, contact authorizing agents and get the cremated remains into the hands of authorizing agents or dispose of them.
Under no circumstance should a licensee continue to maintain and add to stored cremated remains. Doing nothing with unclaimed cremated remains creates, rather than reduces, liability.