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Funerals/access to buried cremains


Following the request of a dear friend, we buried his cremaited remains 12 years ago on a knoll overlooking his farm in upstate New York. They are in a pottery container, and the site is marked with a 1'x 2' flat granite marker. When the farm was sold, the purchaser agreed to allow us continued access. Now the farm is back up for sale. Can a new owner remove the cremains and dispose of them without our knowledge or consent? Or require that we remove them? Since the site is marked, is it implied that a new owner has notice of the site, and must continue to allow us a common law right of access, similar to family burial sites?
I guess I'm wondering to what degree buried cremains are regarded the same way and protected the way a burial plot would be.
I realize this raises an issue for anyone to consider if cremated remains are being kept somewhere other than a public cemetery: how will they be cared for in the long term? We did not think this through in advance, and must confront it now.


Yours is a very complicated question that you may need to hire an attorney to answer. I'll try to do my best but unfortunately my ultimate answer is "I don't know" and I'm going to give you the telephone numbers to two state agencies that could help you.

In New York State the legal disposition of a body is at the crematory. Once the cremation takes place the state doesn't really get involved much concerning what family members do with cremains. So to answer one of your questions- no, buried cremains are not protected or regarded the same way as a burial plot would be- mostly because they aren't buried in a cemetery.

I'm assuming that the current owner of the property only gave you verbal permission to access the site and not written permission. If you do have written permission this should be presented to the new owner. However, I'm not even sure if the new owner would have to honor a written agreement between you and the current owner.

I don't think the new owner can remove the cremains- and I'm not sure why he would want to- but I am fairly certain that he could remove the marker if he wants to. But you may have a way out of all of this- but of course that depends on the current owner and the lay out of the property. New York State does recognize family cemeteries- but they do need to be registered with the state and the property would have to be purchased as such. There are also certain requirements the state has. So depending on where the cremains are located on the property you may be able to purchase back from the current owner that section of property. I cut and pasted the NYS law regarding family cemeteries below:

1401. Private and family cemetery corporations.
   #a#  Private  cemetery corporation. Seven or more persons may become a
 private cemetery corporation by  setting  off  for  a  private  cemetery
 enclosed  real property, to the extent of not more than three acres, and
 by electing at a meeting of the owners of the property so  set  off,  at
 which  not less than seven shall be present, three of their number to be
 directors, to hold office for five years. The chairman and secretary  of
 such meeting shall make, sign and acknowledge, and file in the office of
 the  clerk  of  the  county  in  which such real property is situated, a
 certificate containing the name of the corporation, a description of the
 lands so purchased or set apart, and the names of the directors. No such
 cemetery shall be located within one hundred rods of any  dwelling-house
 without  the  written consent of the owner thereof. Additional lands not
 exceeding three acres may be acquired by a private cemetery corporation;
 but no additional lands so purchased or otherwise acquired shall be used
 for the purpose of burial within three  hundred  feet  of  any  dwelling
 without the written consent of the owner thereof.
   #b#  Removal  of  remains from private cemeteries to other cemeteries.
 The supervisor of any town containing a private cemetery may remove  any
 body interred in such cemetery to any other cemetery within the town, if
 the  owners  of  such  cemeteries  and  the  next of kin of the deceased
 consent to such removal. The owners of a private cemetery may remove the
 bodies interred therein to any other cemetery within such  town,  or  to
 any  cemetery  designated  by the next of kin of the deceased. Notice of
 such removal shall be given  within  twenty  days  before  such  removal
 personally  or  by  certified mail to the next of kin of the deceased if
 known and to the clerk and historian of the county in  which  such  real
 property  is  situated  and  notice shall be given to the New York state
 department of state, division of cemeteries. If any of the deceased  are
 known  to  be  veterans,  the  owners  shall also notify the division of
 veterans' affairs. In the absence of the next of kin, the county  clerk,
 county  historian  or  the  division  of  veterans' affairs may act as a
 guardian to ensure proper reburial.
   #c# Family cemetery corporations. Any person, by deed or  devise,  may
 dedicate  land  to  be  used  exclusively  for  a  family  cemetery. The
 executors, administrators or trustees of a  deceased  person,  with  the
 written  authority  of all of his surviving heirs, next of kin, devisees
 and legatees, executed in person or by an attorney, or  if  infants,  by
 legal  guardian,  may dedicate lands of such deceased person exclusively
 for a family cemetery, or may purchase with the  funds  of  the  estate,
 suitable  lands  therefor.  The land so dedicated shall not exceed three
 acres, not be located within  one  hundred  rods  of  a  dwelling-house,
 without  the  consent  of  the  owner,  unless such land, at the time of
 dedication, is in actual use for burial or cemetery purposes within  the
 limits of a city. The instrument dedicating such land shall describe the
 same,  may  appoint  directors  to  manage  such cemetery, prescribe, or
 provide for making rules, directions or  by-laws  for  such  management,
 direct the manner of choosing successors to the directors, specify their
 qualifications, and grant to them and their successors money or personal
 property  as  a  fund  for  maintaining,  improving and embellishing the
 cemetery, in accordance with the deed or will, or the written  authority
 of  the  heirs,  next  of  kin,  devisees  and  legatees. The instrument
 dedicating land for a family cemetery, together with the  authority,  if
 any,  of  the  heirs, next of kin, devisees and legatees of the deceased
 person, shall be filed in the office of the county clerk of each  county
 in  which  the cemetery is to be situated. The directors before entering
 on their duties, shall file in the office of the county  clerk  of  each
 such  county,  a  written acceptance of their appointment; and thereupon
 they and their successors shall constitute a corporation under the  name
 designated in such instrument. A fund created by will for the purpose of
 maintaining, improving and embellishing such a cemetery shall not exceed
 ten  per  centum  of  the  net value of the estate of the testator. Such
 corporation before receiving any property, money or funds for improving,
 maintaining  and  embellishing  the  cemetery,  shall  execute  to   the
 surrogate  of the county in which such real property is situated, a bond
 with sureties, or the bond of a surety company, approved by  him,  in  a
 penalty  of  twice the principal sum of the fund placed in charge of the
 corporation, conditioned for the faithful preservation  and  application
 thereof  according to the rules, directions or by-laws prescribed in the
 instrument under which the appointment of such directors was  made,  and
 renew such bond or execute a new bond whenever required so to do by such
 surrogate.  At  least  once  in each year and oftener if required by the
 surrogate the corporation shall file with him a verified account of  its
 receipts and expenditures on account of the funds in its hands, or under
 its  control,  together  with vouchers for all disbursements. Any person
 may bequeath or transfer to, and any such corporation may take, money or
 personal property by will, deed or other transfer, upon trust,  to  hold
 and  apply  to  dispose  of  the  same  for  the purpose of maintaining,
 improving and embellishing any lot, plot or portion  of  such  cemetery,
 either  according  to  the discretion of the directors, or for such time
 and upon such terms and conditions,  if  any,  as  to  the  application,
 investment and reinvestment of the principal and income and otherwise as
 shall be stated in the instrument creating the trust as agreed upon, but
 no  such  trust  fund created by will shall exceed ten per centum of the
 net value of the estate of the  testator.  The  corporation  shall  give
 security and account for such money or personal property as hereinbefore
   If  security  is  furnished  by  a surety company bond, the reasonable
 expense thereof shall be a charge against the funds of the corporation.
   #d# Type of corporation. A family or private cemetery corporation is a
 type B corporation under this chapter.
   #e# Private and family cemetery  corporations;  prohibitions.  #1#  No
 private or family cemetery corporation shall, directly or indirectly:
   #i#  sell,  or  have, enter into or perform a lease of any of its real
 property to a funeral entity, or use any of its property for location of
 a funeral entity;
   #ii# commingle its funds with a funeral entity;
   #iii# direct or carry on  its  business  or  affairs  with  a  funeral
   #iv# authorize control of its business or affairs by a funeral entity;
   #v#  engage in any sale or cross-marketing of goods or services with a
 funeral entity;
   #vi# have, enter into or perform a management or service contract  for
 cemetery operations with a funeral entity; or
   #vii#  have,  enter  into  or  perform  a management contract with any
 entity, other than a not-for-profit cemetery corporation.
   #2# Only the provisions of subparagraphs #i# and #ii#  of  subdivision
 one  of  this paragraph shall apply to cemetery corporations with thirty
 acres or less of real property dedicated to cemetery purposes, and  only
 to  the  extent  the  sale  or  lease  is  of real property dedicated to
 cemetery purposes, and such cemeteries shall not engage in the  sale  of
 funeral  home  goods  or services, except if such goods and services are
 otherwise permitted to be sold by cemeteries.
   #3# For the purposes of  this  paragraph,  "funeral  entity"  means  a
 person,  partnership,  corporation,  limited  liability company or other
 form of  business  organization  providing  funeral  home  services,  or
 owning,  controlling,  conducting or affiliated with a funeral home, any
 subsidiary thereof or an officer, director or stockholder having  a  ten
 per  centum  or  greater  proprietary,  beneficial,  equitable or credit
 interest in a funeral home.

I know this is alot to absorb- and I wish I had a clear cut answer for you. I'm going to give you the telephone numbers to two state agencies. The first is the New York State Department of Health's Bureau of Funeral Directing. The director is Deborah Orecki and her number is #518# 402-0785.

The second is the NYS Division of Cemeteries. Richard Fishman is the director and the telephone number there is #518# 474-6226.

I would start with the Bureau of Funeral Directing since the land is not set aside as a cemetery the Division of Cemeteries they will most likely tell you that they don't have any authority over this.

Please let me know what the outcome is.



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Joseph Lucchese


I can answer any questions regarding funeral services, including removal and preparation of remains, especially within the State of New York.


I have been a licensed funeral director for 20 years.

I graduated from American Academy McAllister Institute and also hold a BA and MA in political science from Fordham University.

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