Archive for month: January, 2017
RIGHTS OF CERTIFICATE HOLDERS
THE NEW JERSEY CEMETERY ACT OF 2003 HAS BEEN PASSED BY the State Legislature. This law, which in most respects does not apply to Roman Catholic Cemeteries, is less than a model of clarity. However, based upon the provisions which may apply to Catholic cemeteries, the Newark Archdiocesan Cemetery Program, adopts the following articles. In case of any dispute as to the right to burial or any rights related thereto (including memorials, embellishments and care for the burial spaces), the matter shall be submitted to the Archbishop of the Archdiocese of Newark or his designee, whose decision shall be final and binding upon all persons who have any interest therein.
1. The right to burial can be purchased only with the written approval of the Archdiocese of Newark Catholic Cemeteries and subject to the Rules and Regulations of the Cemetery Program, now or hereafter adopted, and for the purposes of human burial only. This provision applies to all sales.
2. The right to burial includes interment, entombment and inurnment. For purposes of this section only, all of these forms of burial shall be referred to as “burial”, and the location of the burial shall be referred to as a “burial space.”
3. A Certificate of Right of Interment (herein “Certificate”) is a legal document which evidences a right to burial in one or more burial spaces. The Certificate-holder is the person whose name appears on the Certificate at the time of purchase.
4. All burial spaces in the cemetery, as evidenced by the Certificate, whether purchased or transferred, shall be subject to:
A. All applicable laws and governmental regulations;
B. The franchise, charter, certificate of incorporation or other document establishing the Archdiocesan Cemetery Program or individual cemetery;
C. All by-laws of the Archdiocesan Cemetery Program or individual cemetery;
D. These Archdiocese of Newark Catholic Cemeteries’ Rules and Regulations.
5.1 The Archdiocese of Newark Catholic Cemeteries does not transfer title to property, but only the right to be buried, i.e., a burial interest – as evidenced by a Certificate of Right of Interment.
5.2 Within the Archdiocesan Cemetery Program, the Certificate can be in the name of only one person except for a married couple – who may jointly hold it as husband and wife. The Certificate-holder possesses general rights of burial for all spaces, i.e. grave, crypt, niche.
After purchase and designation of the Certificate-holder, the right to burial in the burial spaces held by the Certificate-holder or anyone else cannot be sold to anyone other than the Cemetery from which such right was originally purchased.
Thus, the right to burial can only be sold back to the Cemetery. However, the Cemetery is under no obligation to repurchase, but may do so if it desires to do so and upon such terms and conditions as it deems appropriate.
5.3 There are two types of burial interest stemming from the Certificate-holder’s general rights: (1) The right to designate persons (designees) for burial in a specific burial space; and (2) a common burial right in undesignated burial spaces. The Certificate-holder’s common interest in undesignated burials in the grave, crypt or niche may be passed on by the Certificate-holder in his/her Will or, in the absence thereof, according to the principles of successions as documented herein.
5.4 At the time of acquiring the Certificate, the Certificate-holder should designate in writing one (1) person, a “Designee”, for each burial space in the grave, crypt or niche. The Certificate-holder can change the Designee at any time during his/her life, so long as the Certificate-holder signs and dates a writing, which is then filed with the Cemetery, designating the burial space, the name of the former Designee and the name of the new Designee.
Designee(s) shall be permitted burial by the Cemetery notwithstanding any other common burial rights passing from the Certificate-holder to heirs or next of kin (under a Will or otherwise). Thus, unless changed by a Certificate-holder before his/her death, a Designee’s burial in a specific burial space is given priority over all others, including those who have a common burial right derived from the Certificate-holder. After the death of the Certificate-holder, a Designee may waive his/her right to burial in the burial space in a signed and dated writing, which the Designee must file with the Cemetery (such waiver will also be deemed to occur if the Designee is buried outside the Cemetery).
Similarly, after the death of the Certificate-holder, a Designee may name a Replacement Designee by filing a signed, dated Replacement Designee Form with the Cemetery. Once filed, the person filing the form will no longer have any rights as a Designee.
If a Designee formally waives his/her right to burial, or dies and is buried outside the Cemetery without naming a Replacement Designee, then the right to burial reverts back to the heirs of the deceased Certificate-holder pursuant to common burial rights as explained herein.
Exception: Notwithstanding the foregoing, a spouse of the Certificate-holder has a right to be buried in one (1) burial space. This right shall be satisfied from common burial rights if available (see paragraph 6 below), or if none are available, by using the last named Designee’s space (in which case the last named Designee’s right to a burial space shall be deemed extinguished). The right of such a spouse to a burial space will not be deemed extinguished by anything except an annulment recognized by the Roman Catholic Church.
5.5 After any one person is buried in a grave, crypt or niche (the Certificate holder, a Designee or another), the common burial right (stemming from the Certificate-holder’s general interest in burials in the grave, crypt or niche) cannot be transferred except as follows:
A. The Certificate-holder may transfer his/her common burial right to undesignated spaces in the grave, crypt or niche to another or others in a Will, provided that there is specific reference in the Will to the Certificate.
B. If the Certificate-holder fails to specifically transfer his/her common burial right in the grave, crypt or niche in a Will, then the Certificate holder’s rights automatically pass as follows:
1. To the Certificate-holder’s spouse and the Certificate-holders children (or children of a Certificate-holder’s child who has predeceased), who all have a common burial right in the grave, crypt or niche (all remaining, un-Designated burial spaces). A common right means that each such person has a right singly by himself/herself and collectively with others possessing common burial rights to each of the un-Designated burial spaces.
2. If there is no surviving spouse, then to the Certificate-holder’s children (or children of a Certificate-holder’s child who has predeceased), who all have a common burial right in the grave, crypt or niche (all remaining, un-Designated burial spaces).
3. If there is no surviving spouse or children (nor children’s children) then the Certificate-holder’s parents have a common burial right in the grave, crypt or niche (all remaining, un-Designated burial spaces).
4. If there is no surviving spouse, children (nor children’s children), or parents, then the Certificate-holder’s siblings have a common burial right in the grave, crypt or niche (all remaining, un-Designated burial spaces).
5. If none of the foregoing applies, then the Certificate-holder’s common burial rights pass to the Certificate-holder’s additional next of kin pursuant to New Jersey’s statute on intestate succession, and such person or persons have a common burial right in the grave, crypt or niche (all remaining, un-Designated burial spaces).
5.6 When two or more persons (other than Designees) have a common burial right in a grave or crypt, then each has certain rights:
A. Each has the right to be buried in any of the burial spaces not reserved for Designees.
B. A person may waive his/her common burial right in a signed, dated writing filed with the Cemetery.
C. A person waives his/her common right to burial if he/she is buried outside of the specific cemetery in which he/she holds the common right of burial.
D. A person may transfer his/her common burial right to any other person(s) who have a common burial right in the grave, crypt or niche by filing with the Cemetery a signed and dated Permission to Transfer Common Burial Right to a Named Person.
E. All persons who have a common burial right may collectively transfer their right to a specific burial space to a named person by filing with the Cemetery a signed and dated Collective Permission to Transfer a Specific Interment Space to a Named Person.
F. If more persons have a common burial right in a burial space than may be buried there, any deceased person with a common right to burial in the space may be buried there – if requested by the deceased person’s legal representative, even though it will make the space unavailable to others (not deceased) who also have a common right to be buried in the space.
For example, if three children of a Certificate-holder, and two grandchildren of a deceased child of that Certificate-holder, have a common right to burial in one remaining common burial space, the first to die among these five children/grandchildren can be buried in the space – if requested by the deceased’s legal representative.
Exception: However, if one of the persons having a common burial right is a surviving spouse of the Certificate-holder (and the spouse does not already hold rights to a burial space as a Designee), then one burial space must be reserved for the surviving spouse (unless the spouse has waived his/her right to burial in a signed, dated writing filed with the Cemetery).
G. A person may authorize, in a signed, dated writing filed with the Cemetery that his/her common burial right may be represented by another person who also has a common burial right.
H. Other than a filed authorization as noted immediately above in Paragraph G, the Cemetery may follow the direction of any one person having a common burial right in a grave, crypt or niche who represents that the directions being given represent the consensus (agreement) of all persons who have an interest in the burial space.
5.7 The right to burial includes the right to memorialization, provided memorialization space is available. In this context, memorialization means the right to include name, date of birth and date of death on the existing or to be purchased memorial/monument. Thus, a deceased having the right to be buried in a burial space also possesses the right to have his/her name on a memorial, even if the memorial at the burial space predates the deceased’s burial.
5.8 The Cemetery has the right to bury in accordance with the instructions of a person who swears or affirms that he/she has the right to bury the deceased, pursuant to the current cemetery Rules and Regulations, in the burial space requested.
Note: By law, a person who signs an authorization for the disposition of human remains warrants the truth of the facts stated, the identity of the human remains and the authority to order the disposition. That person will be liable for damages caused by a false statement or a breach of warranty. N.J.S.A. 45:27-30 (d).
5.9 In light of the foregoing, it is important that the Certificate-holder provide a Designee for each burial space, and equally important that the Certificate holder state in his/her Will who is to acquire common burial rights in un-Designated burial spaces in a grave, crypt or niche upon the death of the Certificate-holder. If the Certificate-holder fails to do so, the procedures noted herein for succession may control as to who is entitled to be buried in any remaining, undesignated spaces.
6. The sub-division of burial spaces is not allowed without consent of the Cemetery management and no one shall be buried in any burial space win which the rights have been sub-divided, except by written consent of all parties have an interest in the burial space and the Cemetery authority.
7. Burial spaces shall be freely transferable in accordance with these Rules and Regulations and the Civil Laws of the State of New Jersey (to the extent that Civil Laws may be applicable).
8. The Cemetery authority may, but is not required to, arrange for the exchange of burial spaces at the request of the person or persons having rights therein. In rare cases of necessity, the Cemetery authority may, in its sole discretion, require an exchange of burial space or burial spaces, despite the objection of the person or persons having rights or an interest therein.
9. The Cemetery authority may refuse consent to burial unless and until all monetary payments covering the purchase of the Certificate and/or burial have been paid in full.
10. Cemetery office personnel communicate with certificate-holders and their spouses through either/both customary postal services and/or electronic mail. Program cemeteries continue to solicit email addresses and seek to more fully implement this form of communication with Certificate-holders and their spouses.
It shall be the duty of the Certificate-holder to notify the Cemetery of any change of either street or email address for the Certificate-holder and for his/her spouse. Any notice sent to a Certificate-holder or the spouse at the last address on file, whether the address be a postal box, street address, or email, with the Cemetery shall be considered sufficient, proper and legal notification for all purposes, whether or not such purposes are specified in these Rules and Regulations.