Business and Funeral Law Final Exam

What happens when trust accounts are used as a preneed funding vehicle?

100% trusting versus less than 100% trusting, deposits in insured banks and/or savings & loan

Dormant Partner

A partner who takes no share in the active business of a company or partnership, but is entitled to a share of the profits, and subject to a share in losses. (silent)

Indorsee

A person who becomes the holder of a negotiable instrument by indorsement which names him or her as the person to whom the instrument is negotiated.

What is the proper size of the container for cremation and/or cremated remains?

200 cubic inches as provided by funeral establishment and/or crematory, as provided by family or as required by statute or regulation

Board of Directors

A body elected to govern a corporation on behalf of shareholders.

Partnership

A business entity in which two or more co-owners contribute resources, share in profits and losses, and are individually liable for the entity's actions.

Certified check

A check for which the bank assures that the drawer has sufficient funds to make payment.

What is a lien?

A claim or charge against real or personal property for payment of some debt

Limited Liability Company

A company managed by members or elected managers, like a partnership, but with the liability of the members limited to the amount of capital they have invested in the business.

What is the Equal Employment Opportunity Commission (EEOC)?

A federal agency that administers and enforces civil rights laws against workplace discrimination.

Life estate

A freehold estate where ownership is limited to the duration of some persons lifetime.

What is OSHA?

A governmental agency with the responsibility for regulation and enforcement of safety and health matters for most employees.

Testator

A man who makes a valid will.

What is the legal definition of corpse?

Body of a human being, deprived of life but not yet entirely disintegrated.

What considerations must be made concerning disposal location and measures of non-cremated remains?

Burial at sea of human remains that are not cremated shall take place at least 3 nautical miles from land and in water at least 600 feet deep. All necessary measures shall be taken to ensure that the remains sink to the bottom rapidly and permanently.

When the practitioner does not complete contractual duties there is a breach of contract created. What is the usual result?

Charge of emotional distress to survivors

What is considered to be the historical foundation of United States law?

Common law

What are the contractual duties of the practitioner?

Contract implies and expresses duties of the funeral director which may be oral or written

What is a breach of personal service contract?

Contract involves such personal knowledge, skills, or confidence that it can only be performed by person with whom it is made; any breach will usually cause anguish.

Liability for Funeral Expenses

Contract, decendents estate

Liabilities of Partners

Contracts and torts

Factors that affect the general rule of priority

Decedent's wishes, special relationship, waiver and statutory exceptions.

Primary responsibility for payment of funeral expense

Decedents estate

At the death of the owner, the estate passes to the owner's heirs

Fee simple estate

What are the EPA enforcement powers?

Fines, sanctions, and other measures.

What are some of the general qualifications for state Funeral Director/Embalmer/Mortician/Practitioner license?

Age, citizenship, residency, moral and legal character, formal education, high school or equivalency, college, American Board of Funeral Service Education (ABFSE) accredited program, apprenticeship/internship/residency, board examinations such as written state or national and oral and practical

General Power of Attorney

Agent can do anything for the principal.

What is a non-guaranteed contract?

Agreement in which the funeral home promises to apply the amount pre-paid plus any accruals to the balance due. However, the cost of the funeral will be based upon the current price for the services and merchandise at the time the death occurs.

Dissolution of partnership by acts of parties

Agreement, withdrawal, alienation and expulsion.

What is the limit for notifying the EPA for all burials at sea?

All burials conducted shall be reported within 30 days to the EPA Region in writing.

Blank indorsement

Having no words other than the signature of the indorser.

Offer

How does one describe the proposal to make a contract?

Termination of agency by acts of the parties

How might original agreement, subsequent agreements, revocation and renunciation be classified?

Termination of agency by operation of law

How might subsequent illegality of subject matter, death or incapacitation of either party, destruction of subject matter, bankruptcy of principal, dissolution of corporation and war?

What must be considered during preparation for burial of human remains at sea?

Human remains shall be prepared for burial at sea and buried in accordance with accepted practices and requirements as may be deemed appropriate and desirable by the U.S. Navy, U.S. Coast Guard, or civil authority charged with the responsibility for making such arrangements. For example, local health departments may require burial or cremation permits.

What guidelines are placed on flowers and wreaths for burial at sea?

Flowers and wreaths consisting of materials that are readily decomposable in the marine environment may be placed at the burial site.

What are the purposes of transportation?

For embalming or cremation, for final disposition, to another funeral establishment and for anatomical purposes

When preneed arrangements are made outside the funeral establishment compliance with FTC "Door to Door" rule is required. What is the rule?

For sales made at a buyer's residence that have a purchase price of $25 or more and a purchase price of $130 or more for all other covered sales at temporary locations the seller must provide consumers with disclosures regarding their right to cancel the sales contract within three business days of the transaction.

Involuntary dissoluation of a corporation

Forfeiture or abuse of the corporate charter, violation of state laws, fraud in the procurement of the charter, failure to pay specified taxes for a specific number of years.

Living will

Governs the withholding or withdrawal of life-sustaining treatment from an individual in the event of an incurable or irreversible condition.

Duty of Decent Burial

Surviving spouse, next of kin (in order of kin), public authorities, householder and then others.

General Rule of Priority

Surviving spouse, next of kin by degree of kindred, personal representative, decedents guardian and volunteer.

What can the funeral practitioner do to prevent torts related to cremation?

Implement risk management practices to minimize liability exposure, use of documentation to minimize liability exposure and be aware of the funeral establishment potential liability for third-party crematory

General Partner

Is actively and openly engaged in the business.

What is the Door-to-Door regulation?

It details that the sales pitch itself must not regard things that are in themselves illegal and must be truthful to be protected by the First Amendment, assertive governmental interest is substantial and if the regulation is necessary to serve that interest (i.e. demonstrating "no solicitation" signs and already existing trespass laws are not sufficient).

What is the proposed Bereaved Consumers Bill of Rights?

It directs the Federal Trade Commission (FTC) to prescribe rules prohibiting unfair or deceptive acts or practices in the provision of funeral goods or services.

How is a cemetery classified by location?

Not a nuisance per se

What is the Fair Credit Reporting Act (FCRA)?

It is U.S. Federal Government legislation enacted to promote the accuracy, fairness, and privacy of consumer information contained in the files of consumer reporting agencies. It was intended to protect consumers from the willful and/or negligent inclusion of inaccurate information in their credit reports.

What is the Fair Labor Standards Act (FLSA)?

It is a federal statute of the United States that introduced the forty-hour work week, established a national minimum wage, guaranteed "time-and-a-half" for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor".

What is the Do No Call Regulation?

It is intended to give U.S. consumers an opportunity to limit the telemarketing calls they receive.

What does the Funeral Rule take care of?

It makes it possible for you to choose only those goods and services you want or need and to pay only for those you select, whether you are making arrangements when a death occurs or in advance.

What happens to fee simple estate property upon death of the owner?

It passes to the owner's heirs

What does the Americans with Disabilities Act cover?

It prohibits discrimination against the disabled in employment, public transportation, telecommunications services and public accommodations and services in private entities.

What does the Magnuson-Moss Warranty Act cover?

It says that any warrantor warranting a consumer product to a consumer by means of a written warranty must disclose, fully and conspicuously, in simple and readily understood language, the terms and conditions of the warranty to the extent required by rules of the Federal Trade Commission.

What is the Fair Debt Collections Practices Act?

Its purpose is to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

Real Property

Land and those objects permanently attached to land.

Criminal law

Laws dealing with crimes and the punishment of wrongdoers is known by which term?

Requirements of a Valid Will

Legal age (generally 18), Testamentary capacity and formality.

What is the premises liability with relationship to the funeral establishment?

Level of care depends upon status of visitor. Trespasser: very little degree of care; social guest: high degree of care, business visitor: high degree of care

What torts are identified with wrongful withholding?

Liens, attachments and replevin do not apply to a dead human body, refusal to surrender upon demand of person(s) with authorized right of disposition, personal property and cremated remains are also subject to wrongful withholding

Hybrid form

Limited ownership liability protection as with corporation but avoids double taxation as with partnership.

What type of transportation may the funeral home provide?

Local, intrastate and across county line, interstate and international

What is mental anguish?

Mental suffering resulting from grief, shame, severe disappointment, indignation, wounded pride, public humiliation, despair, etc. usually accompanied by physical injury or by an outrageous intentional or grossly negligent act.

When dealing with cremation, what are the first authorizations and complete disclosures the funeral practitioner must deal with?

Positive personal identification of remains, determination of person with right to control, what is the impact of decedent's wishes and explanation of the irreversible nature of cremation process

Formation of a corporation

Promoter, Articles of incorporation and Charter

What does the law say about cemetery plot ownership and desecration of graves?

Property ownership comes with rights such as the right to expect no damage done to property by another party which includes grave, vault, casket, remains, and memorials

Abatement

Proportional reduction of a legacy under a will when the assets out of which such legacy are payable are not sufficient to pay it in full.

What is a contract carrier?

Provides transportation for compensation only to those with whom it desires to do business (livery service)

How might cemeteries be classified?

Public, private, veterans, religious, green, combination operations (with funeral home) and pet

Treasury stock

Stock that has been bought back by the issuing corporation and is available for retirement or resale; it is issued but not outstanding; it cannot vote and pays no dividends

Common stock

Stock that is secondary to preferred stock in the distribution of dividends and often of assets.

Express contract

Straightforward with "I promise to pay"

General

actively and openly engaged in business

Stockholders (Shareholders)

The person or company that owns a share in a publicly-traded company or a mutual fund.

Par value

The value imprinted on the face of a share certificate or bond and used to assess dividend, capital ownership, or interest.

United States Supreme Court

Which court has original jurisdiction in cases with ambassadors, public ministers, consuls and in cases in which a state is a party?

Circuit courts of appeal (12 judicial circuits)

Which court hears appeals from federal courts and from federal administrative agencies?

Federal District courts

Which court is found at least one per state and hears violations of federal law?

Special Federal Courts

Which court is limited in jurisdiction by the laws of Congress creating them?

promissory note

a negotiable instrument containing a promise to pay

Strict liability

This occurs when the manufacturer, wholesaler or retailer is liable without proof of negligence and is known as what?

Negotiable instrument (commercial paper)

a writing drawn in a special form which can be transferred from person to person as a substitute for money or as an instrument of credit

What are the requirements for conducting funerals?

Under licensed supervision, remains conform with health codes for public/private funeral, conform with applicable laws, rules, regulations; desire of family fulfilled within reasonable limits/public policy; willingly falsify records

What types of remains may be prepared for shipment?

Unembalmed remains, embalmed remains, casketed remains and cremated remains

Primary liability for payment of instrument

Usually the maker, issuer or acceptor

Principals authority

What allows the principal to ratify unauthorized acts?

Common law

What are customs which have become recognized by the courts as binding on the community?

Business law

What are the rules of conduct prescribed by government and its agencies in regulating business transactions?

Law

What are those rules of conduct commanding what is right and prohibiting what is wrong?

The Judicial Process

What determines the power or authority to hear cases?

Statute of Frauds

What gives the types of contracts that must be in writing to be enforceable?

Administrative agency

What has rule making power such as Federal Trade Commission (FTC), State Boards and Health Departments?

Crime

What is An offense which is injurious to society as a whole?

Unenforceable contract

What is a contract that is not currently binding?

Misrepresentation

What is a false statement of a material fact?

Misdemeanor

What is a less serious criminal offense, generally punishable by fine and/or imprisonment of less than one year?

Duress

What is a means of destroying another's free will as a result of a wrongful threat to do the other person or family members some harm?

Felony

What is a more serious criminal offense that is punishable by death or by imprisonment in a penitentiary for more than one year?

Injunction

What is a permanent judicial order or decree forbidding the performance of a certain act?

Tort law

What is a private or civil wrong, other than by breach of contract, for which there may be action for damages?

Nominal

What is a small amount awarded when there is technical breach but no injury?

Promissory estoppel

What is a substitute for consideration when another acts in reliance on a promisor's promise?

Valid contract

What is an agreement that courts will enforce against all parties?

Void contract

What is an agreement with no legal effect?

Compensatory

What is an amount given to an injured party equal to the loss sustained?

Voidable contract

What is an enforceable agreement but, because of circumstances or capacity of a party, one or both parties may set it aside?

Fraud

What is an intentional or reckless misrepresentation of a material fact?

Ratification

What is one's willingness to be bound by promises made during minority?

Indemnification

What is said to make compensation to for damage, loss, or injury suffered or is a statement that exempt's the signer from incurring liabilities or penalties?

Civil law

What is the body of law concerned with private or purely personal rights?

Revocation

What is the cancellation or annulment of a legal instrument (agency)?

Assignment

What is the means whereby one party in a contract conveys rights to another person, who is not a party to the original contract?

Disaffirmance

What is the repudiation of a contract; the election to avoid or set it aside?

Agency

What occurs when a principal appoints another party to enter into contracts with third parties in the name of the principal?

Undue Influence

What occurs when, by relationship, one party is in a position to take advantage of another party?

Liquidated

What sum is fixed by contract for breach where actual damages are difficult to measure?

Novation

What term is used to describe the termination of a contract and substitution of a new one with the same terms but new party?

Renunciation

What term means to give up, relinquish, or reject something?

Special agent

What type of agent is authorized by a principal to transact some specific act or acts and has limited powers?

General Agent

What type of agent is authorized to carry out all of the principals business of a particular kind or all of the principals business at a particular place even though not all of one kind?

Usurious agreements

What type of agreements limit the rate of interest that may be charged for the use of money with any rate above that is applicable?

Apparent authority

What type of authority Is authority believed to have because of the principal's behavior?

Express authority

What type of authority granted by appointment and is stated in the agreement creating the agency?

Implied authority

What type of authority to do things necessary to carry out express authority?

Punitive

What type of award for damages is meant to punish the wrong doer?

Bilateral contract

What type of contract consists of a mutual exchange of promises to perform some future acts?

Executory contract

What type of contract do we find the terms have not been fully carried out by all parties?

Executed contract

What type of contract has been fully performed by all parties to the contract?

Simple

What type of contract is informal and may be in writing, may be oral or implied from the conduct of the parties?

Formal contract

What type of contract must be in a special form or be created in a certain way?

Unilateral contract

What type of contract occurs when an act is in consideration for a promise (only one duty exists)?

Contract under seal

What type of contract will commonly use the word "L.S."?

What torts are usually involved in the invasion of rights?

When is embalming required? unauthorized photos vs. authorized, burial in absence of next of kin, right to privacy / confidentiality and failure to comply with wishes of party with right to control funeral, hospital/institution withholding body or misidentification, public officials -acting beyond immunity, wrongful cremations, inappropriate interment, right of possession implies receiving body in same condition as at the time of death

Per Stirpes

When the heir in the first generation of a branch predeceased the decedent, the share that would have been given to the heir would be distributed among the heir's issue in equal shares.

What does the Health Insurance Portability and Accountability Act (HIPAA) cover?

The basic idea of HIPAA is that an individual who is a subject of individually identifiable health information should have: established procedures for the exercise of individual health information privacy rights and the use and disclosure of individual health information should be authorized or required.

Intestate Succession

The distribution when a person dies without leaving a valid will and the spouse and heirs will take (receive the possessions) by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse.

Articles of Incorporation (Charter)

The document that a firm files with state authorities when establishing a corporation. This document contains the firm's name and address, the type and amount of stock to be authorized and issued, the type of business activity, a delineation of corporate powers, and other information

Inheritance

The estate that passes form the decedent to his/her heirs.

Tenancy by the entireties

joint ownership that can only be used by husband and wife

Real property

land and anything attached to it

Fixed term tenancy

lease agreement has a specific starting and ending date which is decided by both the landlord and tenant

What are some of the reasonable rules that a cemetery is legally allowed to make?

marker, monument, and outer burial container, prohibited practices, hours open/closed, prohibition of flowers & decoration of grave and guidelines for days & times of interments (usually when cemetery is responsible for own grave digging)

Domestic corporation

one chartered in the state where it received its initial charter

Public corporation

one formed for government function

Private corporation

one formed to do nongovernmental function

Holder

one in possession of commercial paper or negotiable instrument

Alien corporation

one incorporated in another country

For profit corporation

one organized to run a business and earn money

Close (closely held) corporation

one with very small number of shareholders

Limited liability company (LLC)

owners called members;

Dormant

partner unknown to the public with no part in management

Nominal

person who pretends to be a partner

Indorser

person who writes his or her name on back of an instrument

Maker

the party making the promise to pay

Payee

the party to whom payment of a promissory note is to be made

Drawer

the person who executes any draft

Drawee

the person, company, or financial institution ordered to pay a draft

Indorsement

the signature or statement of purpose by the owner on the back of a negotiable instrument, which indicates the future control of the instrument.

What torts are considered when mutilation occurs?

unauthorized or negligent embalming and/or restoration, unauthorized trimming or removal of moustache, beard, hair, etc., unauthorized removal of tissue, organs, and/or medical devices, performing procedures other than that required for normal embalming, unauthorized autopsy (need for proper authorization, includes retrieval of tissue samples and other dissection, exceptions are contractual (insurance policies) and right of public officials—coroner/medical examiner/justice of the peace and health officers, and any unauthorized procedures performed on the dead human body

Deed

writing conveying title to real property

Draft

written order by one person directing another to pay a sum of money to a third person

Treasury stock

reacquired by the corporation

Rights of stockholders

right to receive properly executed stock certificate as evidence of ownership; right to attend corporate meetings and vote, unless denied by express agreement; right to receive proportionate shares of profits when distributed as dividends

Check

an order by a depositor on the bank to pay a sum of money to a payee

Property

anything of value that is owned or controlled

Hybrid form of ownership

cross between corporation and partnership

Deed of trust

deed that transfer property to a trustee for the benefit of the creditor

Periodic lease

doesn't have a specified end date and may be regarded as a month to month lease

Sole Proprietorship

simplest and most common form of business ownership; receives all profits and assumes all losses; bears all risks and has unlimited personal liability for all debts; death terminates the business

Negotiation

the act of transferring ownership of a negotiable instrument to another party

Subchapter S corporation

for tax purpose; files only an information tax return; owners report profit on their personal income tax returns

Life estate

freehold estate where ownership is limited to the duration of some person's lifetime

Preferred stock

gives special advantage or preference to the holder.

Par value stock

has an assigned face value

Silent

has not part in the firm

Fee simple estate

Absolute ownership with all the rights associated with ownership of real property

Duty

Act or course of action required of one as a law or moral obligation.

Spring Power of Attorney

Agent can act for the principal effective only upon a certain event occuring.

What is a revocable contract?

Agreement which may be terminated by the purchaser at any time prior to the death of the beneficiary with a refund of the monies paid on the contract as prescribed by state law.

Corporation

An entity such as a business, municipality, or organization, that involves more than one person but that has met the legal requirements to operate as a single person, so that it may enter into contracts and engage in transactions under its own identity.

Per Capita

An equal share of an estate is given to each of a number of persons, all whom stand in equal degree to the decedent.

Special indorsement

An indorsement on an instrument that indicates the specific person to whom the indorser intends to make the instrument payable

Qualified indorsement

An indorsement which limits the liability of the indorser.

Restrictive indorsement

An indorsement which prevents the use of the instrument for anything except the stated use.

What is a common carrier?

Any carrier required by law to convey passengers or freight without refusal if the approved fare or charge is paid (airline, train, etc.)

What are punitive damages?

Are not to compensate the plaintiff for damages suffered, but to punish the defendant; unintentional conduct doesn't fall under punitive, there is complete disregard for proper conduct.

Alien corporation

A company incorporated under the laws of a foreign country regardless of where the company conducts its operations.

Revocation of Power of Attorney

By operation of law at death.

Unsecured claim

Claim which is not supported by a pledge, mortgage or lien on other assets.

Quasi Property Theory

Current associatied theory of the legal status of a dead human body is that rights are as if it were property only for the purpose of disposition.

What is intentional infliction of emotional distress?

Defendant's conduct is intentional, wrongful, outrageous, reckless, and malicious and done with the intention of causing plaintiff severe emotional distress

What organization laws are necessary to follow when providing transportation?

Department of Health, state Boards, intrastate & Interstate Commerce, and Transportation Security Administration (TSA)

Revocation of a valid will by an act of the testator

Destroy and/or write new one.

Title

Evidence of ownership of property

What are pre-planned funeral arrangements?

Funeral arrangements made in advance of need that do not include provisions for funding or prepayment.

What are pre-funded funeral arrangements?

Funeral arrangements made in advance of need that include provisions for funding or prepayment.

Primary Right of Disposition

Has a sacred trust, must act in good faith without malice and with due regard for that which is prudent.

Divorced spouse

Has no right of priority.

Actual custody

Has physical possession of the body.

Separated spouse

Has the right of selection

Implied contract

Isn't a clear "I promise to pay"

For profit corporation

One organized to run a business and earn money.

Nuncupative will

Oral will or dictated by the testator during last illness before appropriate witnesses to dispose of personal property.

Who provides oversight for the Funeral Rule?

The FTC

What is clinical death?

The absence of all vital signs.

Contructive custody

The right to acquire actual custody or possession of a dead human body although another party has physical possession.

Duties of a partner

To exercise loyalty and good faith, use reasonable care and skill, comformance to contract of partnership, to maintain records and to inform.

Secondary liability for payment of instrument

Usually the drawer

Testate

When one dies leaving a valid will.

Intestate

When one dies without leaving a valid will.

Statute of limitations

Where would one find the time limit for which one has the right to sue must be exercised or lost?

Federal Courts

Which court hears bankruptcy, claims against the US, patent and copyright cases?

Bearer paper

a commercial paper payable to bearer or cash; i.e. to the person having possession of such

Secret

active partner but unknown to the public

Common stock

simplest form of stock and the normal type issued.

What is meant by the term eminent domain?

The inherent power of a government to take private property for public use

Certificate of Deposit

a certificate issued by a bank to a person depositing money for a specified length of time.

Cashier's check

a check drawn by a bank on its own funds and signed by an officer of the bank

Secured claim

A debt which is supported by a pledge, mortgage or lien on assets belonging to the debtor.

Stock Certificate

A document representing the number of shares of a corporation owned by a shareholder.

Testatrix

A woman who makes a valid will.

Secret Partner

Active partner but is unknown to the public.

Promoter

Acts on behalf of the corporation before it is formed.

Usual priority of estate claims

Administration expenses, funeral expenses (preferred), taxes, last illness, secured claims, unsecured claims, wages and child support.

What is an outrageous act?

An act with complete disregard for proper conduct which transcends the bounds of common decency

What is replevin?

An action to recover possession of wrongfully withheld personal property

Codicil

An addition or amendment of a last will and testament executed with the same formality as the will.

What is the EPA?

An agency of the U.S. federal government which was created for the purpose of protecting human health and the environment by writing and enforcing regulations based on laws passed by Congress

What is an irrevocable contract?

An agreement for future funeral services which cannot be terminated or canceled prior to the death of the beneficiary.

What is a guaranteed contract?

An agreement whereby the funeral home promises that the services and merchandise will be provided at the time of need (in the future) for a sum not exceeding the original amount of the aforementioned contract plus any accruals, regardless of the current prices associated with providing the services and merchandise at the time of the funeral.

Duties of personal representative

Inventory, file and pay decedent's and estate tax return, pay claims and accounting of inventory value plus income less expenses.

Fee simple estate

Creates absolute ownership of the property and entitles the owner to all rights of the property which are only restricted by law or private restrictions, such as zone ordinances or covenants.

What are the legal concerns of unclaimed cremated remains?

Cremains are the responsibility of crematory and responsibility of funeral establishment.

What considerations must be made concerning disposal location and measures of cremated remains?

Cremated remains shall be buried in or on ocean waters without regard to the depth limitations specified for non-cremated remains provided that such burial take place at least 3 nautical miles from land.

What are examples of disinterments conducted in the public interest?

Criminal or civil cases, eminent domain proceeding and to provide access for public streets

No Property Theory

Death human body was under the exclusive control of the church.

Dissolution of partnership by operation of law

Death, bankruptcy and illegaility.

Estrangement

Difficult to prove but would void the right of custody.

What does the EEOC investigate?

Discrimination complaints based on an individual's race, color, national origin, religion, sex, age, disability, genetic information, and retaliation for reporting, participating in, and/or opposing a discriminatory practice.

What are examples of disinterments for private reasons?

Disinterment and re-interment at another location, consolidate burial plot of family members at cemetery, and to recover improperly buried valuables

Revocation of a valid will by operation of law

Divorce, marriage or remarriage and birth or adoption of children.

Uniform Probate Code

Drafted in 1969 with the aim of modernizing and standardizing the laws relating to affairs of the decedent.

What is the funeral home's liability with relation to the volunteer driver in the funeral procession?

Driver always liable for own torts, volunteer drivers are not an agent of the funeral director, funeral director has no control so funeral home usually has no liability (e.g., wrong instructions, improper inclusion of incapacitated driver in procession)

Not entirely disintegrated

Dust of a long dead body and the bones of a skeleton are not classified as a body.

Who is responsible for the guidelines for burial at sea?

EPA, state as applicable and military requirements for veterans

Ademption

Extinction or withdrawal of an inheritance because the decedent did not own the property at the time of death.

Will

Formal document that governs the transfer of property at death.

What are some of the grounds for revocation, suspension, or refusal to renew or issue license?

Fraudulent certificate, license, or diploma; altered license, certificate or diploma; misleading advertising; false statements to obtain license; soliciting or employing solicitors of dead human bodies; removal/embalming without permission, conviction of a criminal act involving felony or moral turpitude (crime involving a willful wrongdoing); use of indecent or obscene language in the immediate hearing of a family; unfit by reason of substance abuse; unfit due to a state of insanity; performing service outside authorized limits; refusing to surrender a body when properly ordered to do so; willful false statement on a death certificate; untrustworthiness in financial dealings; failure to fulfill continuing education requirements; failure to comply with state funeral establishment requirements; misleading or deceiving advertising; Solicitation of dead human bodies, failure to provide licensed personnel and willingly falsifying records

What is the funeral home's liability for agent drivers?

Funeral director has control so funeral home has liability

What happens when a funeral practitioner violates legal and contractual duties?

Funeral director incurs liability to the state and/or family of the deceased

What is the funeral home's liability for livery?

Funeral home is liable if holds out such cars and drivers as his own

What happens when insurance is the preneed funding vehicle?

Funeral insurance versus burial insurance, insurance producer license may be necessary to execute, commissions may be available

Subchapter S corporation

In general, S corporations do not pay any federal income taxes. Instead, the corporation's income or losses are divided among and passed through to its shareholders. The shareholders must then report the income or loss on their own individual income tax returns.

What are examples of disinterments conducted in the public health?

In the case of grave constituting a threat to public health such as contaminating well water

Soldiers and Sailors will

Informal will in which a solder in the field or a sailor at sea may dispose of personal property.

Dissolution of partnership by court decree

Insanity, incapacity, misconduct and futility.

Power of Attorney

Instrument in writing authorizing one person to act as an agent for another.

What are the methods of final disposition?

Interment (burial/inhumement), burial at sea, entombment, cremation, body donation (cadaver), alkaline hydrolysis

What happens to joint tenancy property upon death of one of the joint tenants?

On the death of one of the joint tenants, his or her interest automatically passes to the surviving joint tenants.

Public corporation

One formed for governmental functions.

Quasi contract

One imposed bvy law for a person who needs something but is not able to contract for him/herself.

Holographic will

One that is not witnessed but written entirely in the handwriting of the testator.

Foreign corporation

One that is operating in a state other than the state in which it was chartered.

Silent Partner

One that makes financial investments in a business enterprise but does not participate in its management.

Domestic corporation

One this is charted in the state where it received its initial charter.

Heir

One who inherits property either under a will or through someone dying intestate.

Nominal Partner

One who lends his or her name to a venture or business and appears to be a partner, but in truth is not.

Householder

One who owns or controls the real estate where a death occurs.

Sole proprietorship

One who owns or owns and manages a business or other such establishment.

Legatee

One who receives personal property under a will.

Beneficiary

One who receives property left under a will.

Devisee

One who receives real property under a will

What are some of the issues with regards to the sale of cemetery plots?

Ownership issues such as the right to use the plot, the fact that ownership is not the same as ownership of real property, and all rights pertaining to the sale are subject to cemetery rules

Rights of Partners

Participate in management, to inspect financial data, contribute to business, to withdraw advances and to withdraw profits.

Dissolution of a corporation

Pay all debts, distribute remaining assets to stockholders, surrender the articles of incorporation.

Who has the responsibility for determining rightful use of cemetery property?

Person with the right of disposition and/or authorization from the property owner

Bequest or legacy

Personal property left in a will.

What must the funeral practitioner remember regarding disposition of cremated remains?

Placement in proper container, delivery to authorized party and/or location, separating cremated remains into multiple containers

Devise

Real property left in a will.

What does practicing due diligence with respect to all aspects of the profession usually entail?

Reasonable and prudent actions, establish and follow standards of care, importance of training and communications for legal compliance and risk management, documentation

Generally speaking, what are the guidelines for the actions of a Funeral Director/Embalmer as prescribed by the state?

Removal of remains without authority, embalming without authority, conducting a funeral without authority, disposition of remains without authority, mutilation in preparation or restoration, hold himself/herself out to perform duties outside the scope of his/her license, failure to surrender or dispose of remains upon request, committing acts which are illegal, pre-need requirements, and performing any other acts which fall under auspices of applicable licensing laws

A will must be probated

Settled under the supervision of the courts.

What happens in a sole proprietorship?

Simplest, most common form of ownership, proprietor receives all profits, proprietor assumes all losses, proprietor bears all risks, proprietor has unlimited personal liability for all debts and death of proprietor terminates the business.

Right

Something that is due a person by law, tradition or nature.

Requirements for Decent Burial

Standards of care expected of the profession, community standards, wishes of the decedent, wishes of survivors, public interest and statutes and ordinances.

Insolvent Estate

State statute controls priorty of claim

Secondary Right of Priority

State, County and Local

What are the sources of legal and contractual duties for a funeral practitioner?

Statutory laws of the state, requirements of the funeral contract, common law

Preferred stock

Stock that has a superior claim to that of common stock with respect to dividends and often to assets in the event of liquidation.

What does the FCRA regulate?

The collection, dissemination, and use of consumer information, including consumer credit information.

Insolvent estate

The condition of an estate of a deceased person that is unable to pay for the debts of the decedent and/or the estate.

Escheat

The forfeiture of a decedents property to the state in the absence of heirs.

Testamentary disposition

The giving away of ones property by will.

What is the negligent infliction of emotional distress?

The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another

Joint tenancy

The joint ownership of property by two or more co-owners in which each co-owner owns an undivided portion of the property.

Property Theory

The legal bundle of rights recognized in an object

Captital stock

The total stated or par value of the permanently invested capital of a corporation.

What is a private carrier?

Those who transport only in particular instances and only for those they choose to contract with (funeral home vehicles, transportation by family)

Rights of Stockholders

To receive properly executed stock certificate, to attend corporate meetings and vote (unless denied by express agreement), to recieve proportionate shares of profits when distributed.

What is brain death?

Total and irreversible cessation of brain function as indicated by a flat EEG reading.

Deed of trust

Transfers property to trustee for the benefit of the creditor.

Preferred claim

a claim which is accorded a priority, advantage or privilege; a superior claim or right of payment as against another of the same kind or class.

Stare decisis

Which terms means to stand by the decision?

Employer

Who is liable for injuries by 3rd parties caused by negligence of employees and must comply with law relating to employees?

Principals duties to agent

Who is responsible for compensation, reimbursement, indemnification and adherence to the terms of contract?

Agents duties to principal

Who is responsible for loyalty, good faith, obedience, reasonable skill and diligence, accounting and information?

Assignor

Who is the party making the assignment?

Assignee

Who is the party to whom the assignment is made?

Agent

Who is the person appointed to contract on behalf of another?

Offeree

Who is the person to whom the offer is made?

Principal

Who is the person who appoints another to contract with third parties?

Offeror

Who is the person who makes the offer in a contract?

Employee

Who performs the work of the employer and is under the control of the employer as to work to be done and manner in which it is to be done?

Durable Power of Attorney

Will become or remain in effect in the event the principal later becomes disabled.

Express contract

With what type of contract do the parties express their intentions by words at the time they make the agreement?

Implied contract

With which type of contract do the parties have the duties and obligations that the parties assume are not expressed but are implied by acts or conduct?

Deed

Writing conveying title to real property

Abstract of title

a brief history of the ownership of a piece of property

Foreign corporation

all other states

Order paper

commercial paper made payable to the order of some named party; the word order or its equivalent must be used