Do Cemetery Plots Go Through Probate? What You Need to Know

You’ve inherited a cemetery plot—now what? While it might seem like a straightforward asset, the rules around burial plots and probate are full of surprises. Spoiler: Sometimes they skip probate entirely. Here’s how to the legal gray area.

Cemetery Plots 101: Are They Part of Your Probate Estate?

In most states, cemetery plots are considered personal property, not real estate. This means they’re typically included in your estate and subject to probate unless you take specific steps to avoid it. However, exceptions abound:

• Joint Ownership: If the plot is co-owned (e.g., by spouses), the surviving owner automatically inherits it without probate.
• Designated Beneficiaries: Many cemeteries let you name a beneficiary on the deed, bypassing probate.
• Trust Ownership: Plots held in a revocable living trust transfer directly to heirs.

Key Statistic: 67% of estates under $100,000 avoid full probate in the U.S. by using simplified processes (American Bar Association, 2023).

When Cemetery Plots Do Go Through Probate

Probate is likely required if:

1. No Beneficiary is Named: The plot becomes part of the probate estate and passes via your will or state intestacy laws.
2. The Estate is Large: If your total assets exceed your state’s “small estate” threshold (e.g., $75,000 in Texas), probate is triggered.
3. Disputes Arise: Heirs contest ownership, forcing court intervention.

Example: In California, plots without a named beneficiary must go through probate per California Probate Code §13050, even if the estate is small.

4 Ways to Avoid Probate for a Cemetery Plot

1. Name a Beneficiary on the Deed
   • Submit a Right of Interment Designation form to the cemetery. In Washington State, this is legally binding under RCW 68.04.240.
2. Use a Payable-on-Death (POD) Designation
   • Some states (e.g., Ohio) allow POD clauses for burial plots, similar to bank accounts.
3. Transfer Ownership via a Living Trust
   • Plots in trusts avoid probate and transfer privately to heirs.
4. Apply for Small Estate Affidavits
   • In Michigan, estates under $27,000 can use an affidavit (MCL 700.3983) to claim the plot without probate.

State-Specific Probate Exceptions

• Florida: Allows “summary administration” for estates valued under $75,000 (Florida Statutes §735.201), streamlining plot transfers.
• Louisiana: Family tombs in New Orleans often bypass probate due to Napoleonic Code traditions.
• Arizona: Native American tribal cemeteries operate under sovereign laws, exempt from state probate rules.

Pro Tip: Check your state’s probate thresholds here.

Related article for you:
What Happens to a Cemetery Plot When the Owner Dies?

What Happens If There’s No Will?

Without a will, the plot passes via intestate succession laws:

1. Spouses and Children: Typically inherit first.
2. Extended Family: If no immediate family exists, siblings or parents may claim the plot.
3. State Ownership: If no heirs are found, the plot may escheat to the state (rare but possible).

Case Example: In Estate of Johnson v. Riverside Cemetery (2020), a Minnesota court awarded a plot to a cousin after the deceased had no surviving relatives—but only after a 9-month probate process.

Hidden Pitfalls to Watch For

1. Cemetery Bylaws Override State Law: Even if probate is avoided, cemeteries can charge transfer fees (e.g., $300 in New York’s Woodlawn Cemetery).
2. Perpetual Care Funds: If the plot’s maintenance fees lapse, the cemetery may block transfers until debts are paid.
3. Veteran Plots: Transferring a VA-owned plot requires approval from the National Cemetery Administration, regardless of probate status.

3 Steps to Secure Your Plot’s Future

1. Update Your Deed: Name a beneficiary or co-owner with your cemetery.
2. Include It in Your Will: Specify who inherits the plot to deter disputes.
3. Store Documents Safely: Keep the deed, contract, and beneficiary forms in a fireproof safe or digital vault like Ever plans.

Key Takeaways

• Cemetery plots can avoid probate through joint ownership, trusts, or beneficiary designations.
• State laws vary widely—always confirm local probate thresholds and cemetery rules.
• Unresolved plots risk abandonment or family feuds. Act now to protect your wishes.

Resources

1. Free Will Templates: AARP Estate Planning
2. State Probate Laws: National Center for State Courts
3. Cemetery Transfer Assistance: ICCFA