A funeral home or mortuary may require a court order before it can cremate the decedent's body. To get that court order, you will need to petition the court for approval to cremate the body.
Basic Information about Cremation
Who can request the cremation?
Any of the following can petition the court for an order to allow cremation. Ideally, the person closest to the top of the priority list would make the request to the court.
- A person designated in a legally valid document (such as a will or an affidavit of the decedent signed before their death) as the person with authority to order the cremation.
- Spouse.
- Adult son or daughter.
- Parents.
- Adult brother or sister.
- Grandparent.
- Guardian at the time of death.
If you petition for cremation but there are others higher on the priority list than you, you will need their written consent to file with your request. You’ll have to provide the names, ages, relationships, and addresses of all persons who have equal or higher priority than you.
Who keeps the cremated remains?
If the court issues an order authorizing the cremation, that order only gives permission for the decedent to be cremated. It does NOT entitle anyone to keep the remains, nor does it dictate how the remains will be spread or maintained. That may need to be decided in a later probate case if there is a dispute.
Steps to request an order to allow cremation:
1. Obtain necessary documents. You'll need to gather a few things before filing.
2. Fill out the forms. There are 3 forms you'll need to fill out.
3. File the forms. File these at the District Court.
4. Wait to receive the signed order. There is usually no hearing.
Read more about each step below.
1. Obtain Necessary Documents.
You'll need:
- Death Certificate. You will need to attach a copy of the death certificate to your petition.
- Will. If the person left a will, get a copy to attach to your petition.
- Relatives' Consent. If there is a relative higher than you on the priority list of relatives above, you'll need to get their written consent showing they agree for you to file the petition requesting cremation. Ask each relative with higher priority than you to sign and notarize one of these consent forms:
Probate Consent (pdf fillable)
If there is a relative higher than you on the priority list who will not / cannot consent, make sure to explain why in your petition.
2. Fill out the forms
There are 3 forms you must fill out. List yourself as the 'petitioner' and the person who passed away as the 'decedent.'
Cover Sheet (pdf fillable) (select "Other Probate" in section II)
Request for Submission (pdf fillable)
Ex Parte Petition for Cremation (pdf fillable) - attach a copy of the death certificate and the will (if there was one) to this form.
3. File the forms
File the papers above along with any relative consent forms at the district court in your county. Visit Find My Court if you are not sure where your local district court is located.
The court will charge you a filing fee to file your papers. The fee is different in every county. Find out from your local court what the filing fee will be.
If you cannot afford the filing fee, please see Filing Fees and Waivers to find out how to apply to waive the fee.
4. Wait for the order
Find out from your local court how to turn these papers in to the judge.
There is usually no hearing. The judge will review your papers, and if the judge approves your request, the judge will issue an Order approving the cremation. The judge's staff might call you to pick up the Order, or they might send the Order to you in the mail.
Once you have the order, you can bring it to the funeral home or mortuary so they can proceed with the cremation.
