Bamboozled: The plot thickens: Who has final say on unused graves?

Jim Powers comes from a Catholic family that’s been pretty good at planning ahead.??????????????????

In 1962, Powers’ parents went partners with Powers’ aunt uncle on some cemetery plots at St. Gertrude Cemetery in Colonia, a Catholic cemetery operated by Catholic Cemeteries of the Archdiocese of Newark. They purchased space for eight people for $600, and they split the cost.

Technically, they didn’t buy the land, but they bought the right to be buried there.

Over the years, six of those spots filled. The first was Powers’ unmarried uncle in 1962, then another unmarried uncle followed. Then Powers’ uncle — the one who purchased the plots — died, followed by Powers’ dad in 1978.

Powers mom died in 1990. Powers was his mother’s only beneficiary, her will shows, and she left all of her property to him. That’s when Powers got the deed paperwork for the cemetery plots.

Then in 1993, Powers’ aunt — the last of those listed on the cemetery deed — passed away.

When his aunt died, her only substantial asset — her home — was willed to her neighbors. There wasn’t much of anything left.

graveAs more years passed, Powers, now 82, and his wife decided they wanted to be buried elsewhere when their time came.

They purchased their own plots in another cemetery. That meant the two remaining spaces at St. Gertrude’s weren’t the intended destination for anyone.

Powers decided to do something about it.

He contacted St. Gertrude’s to see if he could sell the two remaining plots, either to the cemetery or to someone else.

The cemetery said no, Powers said.

Next, he asked if he could give them away to two needy friends. The friends were Catholic — a requirement for internment at St. Gertrude’s.

At first, it seemed that would work.

But when Powers arrived to sign the paperwork, there was a problem.

“They asked if there were any other living relatives,” Powers said.

Powers told them he had no siblings, and his deceased aunt and uncle had no children born to them, but they adopted a son. The relationship between his aunt and uncle and the adopted son became estranged in the 1960s, Powers said.

With news of this cousin, the cemetery said no to giving away the two plots.

“They told me that they couldn’t transfer it because he might be entitled to it,” Powers said.

Powers said he explained he hadn’t heard from the cousin in 50 years. The cousin moved away shortly after his 1965 wedding, and he hasn’t been heard from since, Powers said.

The cousin didn’t attend the aunt’s funeral, and to the best of Powers’ knowledge, he wasn’t in the couple’s wills. The only visitor to the relatives’ grave sites was the neighbor who inherited the aunt’s home, he said.

The cousin had a very common name, Powers said, and he had no idea if the cousin was living or dead. He’d be around 78 years old.

It’s not that Powers needs the money for selling the plots, he said. It’s a matter of right and wrong.

“The plots are already paid for in full,” Powers said. “Can the cemetery resell them to someone of their choosing if I don’t use it? Their actions seem very unfair to me.”

THE RULES

Bamboozled reviewed Powers’ cemetery paperwork, some of the cemetery’s rules and regulations, his mom’s will and Powers’ executor certificate.

While we asked St. Gertrude’s to look at Powers’ case, we asked about what plot owners can and can’t do in general.

Maria Margiotta, a spokeswoman for the Archdiocese of Newark, shared with us one page from “Catholic Cemeteries Rules & Regulations: Rights of Certificate Holders.”

It said owners are not allowed to sell their interment rights except to the Archdiocese, “and then only under limited circumstances.”

It also said: “No permitted transfer or assignment of any interment space, or interest therin, shall be valid until accepted in writing…”

We asked to see the entire document because it wasn’t available online, and the Archdiocese said it was looking for it.

While we waited, we wanted to learn more.
A person who acquires the right to be buried in a cemetery under the control of a religious organization is subject to the rules and regulations of the cemetery, said Shirley Whitenack, an estate planning attorney with Schenck, Price, Smith & King in Florham Park.

St. Gertrude’s rules say that when the owner dies and hasn’t specifically passed the cemetery space through a will, a legal order of succession is followed: It begins with the surviving spouse and the owner’s children, then it goes to the owner’s parents, then to the owner’s brothers and sisters equally, then to the owner’s closest next of kin.

The web site isn’t specific about whether or not the cemetery can ever “reclaim” unused space — that’s why we wanted to review a copy of the full rules and regulations.

The New Jersey Cemetery Act of 2003 addresses the issue, saying a cemetery company may reclaim a grave or crypt under certain circumstances, such as if no burial has been made for 30 years or if no provision was made for maintenance, but religious cemeteries are exempt from the act, Whitenack said.

Cemetery companies — including religious ones — can place “reasonable restrictions” on transfers, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park.

The key here is “reasonable restrictions.”

“If I’m not going to use something and you don’t want to buy it back, I should be able to give it away,” Romania said. “To say you can’t sell it or donate it to someone, you can probably call that an ‘unreasonable restriction.’ Why should they be able to wait it out and then just sell it again?”

Romania said it’s understandable if the cemetery wants to make sure no other family member has an interest in the plot. A copy of the aunt’s and uncle’s wills may be available from the Surrogate’s Court of the county where they lived at the time of their deaths.

After a few days, the Archdiocese still couldn’t provide the full text of the cemetery rules. We were especially interested in the language that describes whether or not, and how, a cemetery could reclaim unused plots.

It’s not unusual for someone to contact the Archdiocese about ownership rights of burial plots purchased years or even decades before, said spokesman Jim Goodness.

“In this particular situation, questions of ownership rights come up because of other possible heirs, and we must be diligent to ensure proper ownership,” he said. “Also, we respect the intentions of the original owners who purchased this as a four-spaced family plot – it was not purchased as four individual spaces to parcel out.”

Goodness also said Catholic Cemeteries does not repurchase or resell unused burial spaces purchased as part of a complete family plot, and that any resales of interment spaces are subject Archdiocese of Newark Catholic Cemeteries Rules & Regulations.

But we still hadn’t seen those rules and regulations.

So seeking clarification, we asked, assuming Powers can’t resell or donate the spaces, if the spaces would stay empty forever and never be resold by the cemetery.

Goodness said he wasn’t sure.

But he did, this time, compare it to a family that purchases a mausoleum that could hold eight caskets. If only five or six are placed in the mausoleum, and there are no other family members to bury, the cemetery cannot simply reallocate the remaining space to someone else, he said.

He also said once the ownership issues are clarified, “whoever is the owner would be able to allow someone of his choice (even if not a family member) from being placed in that plot.”

Then we finally got the pages of the rules that Goodness said related to ownership issues. The rest were for internal use, he said.

Nowhere does it say the cemetery may someday resell plots, but nowhere did it say the cemetery wouldn’t, either.

To Powers, who is standing by for news, that wasn’t very reassuring.

“It would seem very unfair for them to be allowed to resell it,” he said.

The takeaway for you, dear readers? Make sure you understand all the rules and restrictions if you buy space at a cemetery, and be sure your heirs know the rules, too.

We’ll keep you posted.

Have you been Bamboozled? Reach Karin Price Mueller at Bamboozled@NJAdvanceMedia.com. Follow her on Twitter @KPMueller. Find Bamboozled on Facebook. Mueller is also the founder of NJMoneyHelp.com.