Bailey’s Prairie, in Brazoria County, is the final resting place of James Briton Bailey, one of Stephen F. Austin’s Old Three Hundred colonists. He was buried standing up, facing west, so that no man could look down on him and say, “there lies old Brit Bailey.”
Legend has it he also asked his wife to bury his rifle and to place a jug of whiskey at his feet. Brit’s wife thought he’d had enough to drink, and so buried the rifle but not the whiskey. His ghost is said to wander the area as a white round ball of light, known as Bailey’s Light, searching for more whiskey.
Had he planned ahead, Brit could have slaked that thirst. You too, can leave burial or cremation instructions with confidence they will be honored. This article discusses disposition of a decedent’s remains, and the Texas form to appoint an agent.
When someone dies, who buries the body? Do instructions matter?
In Texas a decedent’s remains are controlled by–
Written instructions in:
- a will;
- a pre-paid funeral contract; or
- any paper the decedent acknowledged before a notary public;
Decedent’s agent for disposition of remains; then
Family or friends, in the order listed:
- the decedent’s surviving spouse;
- any one of the decedent’s surviving adult children;
- either one of the decedent’s surviving parents;
- any one of the decedent’s surviving adult siblings;
- any one or more of the duly qualified executors or administrators of the decedent’s estate; or
- any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.
Thus, unless an agent has been appointed, family usually controls the remains. The surviving spouse has priority, followed by different classes of survivors.
Unless you go out of your way to specify them, friends are included only if appointed executor or administrator by the probate court. Even then, next of kin has priority.
A common law spouse has the same right to control a burial (or cremation) as a ceremonial spouse. Register an informal marriage before the county clerk, so proof will be easier (read “cheaper”) if contested.
The person in charge, whether family or an agent, may ignore the decedent’s instructions, unless they are written in a will or pre-paid funeral contract, or acknowledged before a notary.
Even written instructions are unreliable when they fall to unsympathetic family. How enthused would the widow Bailey have been if Brit asked to be buried next to his first wife? Even worse, what if the same request fell to Brit’s children from both wives? The statute provides no tiebreaker when survivors share responsibility but disagree among themselves.
Appointment for Disposition of Remains
Texas’ form Appointment for Disposition of Remains is a flexible alternative to other written instructions or family alone.
The Appointment form allows you to pick your own agent, e.g., a single sibling or a parent, even if your spouse would otherwise have priority. You may also name someone outside the family altogether, e.g., a friend or companion. Successor agents may be named in case anyone is unable or unwilling to serve.
Appointment for Disposition of Remains – This is the statutory form, formatted, and saved as a PDF.
Here’s the same form, with additional language for Muslims: Appointment for Disposition of Remains (Islamic).
The appointed agent may disregard the family’s objections and even your own oral instructions. Use the Special Directions of the Appointment form to offer at least some guidance, e.g., “Cremate my remains.”
Agents and successors must sign the form to accept their appointment. Like other written instructions, acknowledge your own signature before a notary public.
Think budget when preparing your instructions. The person in charge, whether family or friend, is responsible for the cost. They may apply to the estate for reimbursement, but will have to front the initial expense themselves. A Viking or a New Orleans jazz funeral sounds fun, but someone still has to pay for it. If the executor or administrator appointed by the court controls the remains, they may use the estate’s money. Everyone else has to front the expense and apply for reimbursement later.
Brit Bailey Revisited
In Brit Bailey’s case, he should have discussed the whiskey with his wife, and continued that conversation until he found several family and friends who shared his enthusiasm. Brit should then have acknowledged the Appointment form before a notary, naming an agent and two successors, and including special directions that a jug of whiskey be placed at his feet. Had that option been available in 1832, his ghost would rest more comfortably today.
The Appointment form is a Texas statute, and is available free at http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.711.htm (scroll down to § 711.002. Disposition of Remains). A formatted version is available for download in the middle of this page.
The legend of Bailey’s Light is in the Handbook of Texas Online, indexed under Bailey, James Briton, at https://tshaonline.org/handbook/online/articles/fba08.
For more about Brit Bailey and other Texas pioneers, visit the Brazos County Historical Museum, 100 East Cedar, Courthouse Square, Angleton, Texas 77515 or call 979.864.1208. Visit www.bchm.org.