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J. Warren
J. Warren, Attorney
Category: Estate Law
Satisfied Customers: 2211
Experience:  Experience in estate planning including wills, trusts and succession planning.
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I need to have my brother, who died at birth in 1966, exhumed

Customer Question

I need to have my brother, who died at birth in 1966, exhumed from a cemetery in Dayton to be buried with his twin, who died this morning.
Submitted: 8 months ago.
Category: Estate Law
Expert:  J. Warren replied 8 months ago.
Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.My condolence on your loss. Exhuming a body is governed by Ohio Revised Statute 517.23 Disinterment of body buried in cemetery. A person wish to exhume a body must petition the probate court and obtain an order to do so. The application for disinterment is found in section 517.24. Below is the text of each statute along with a copy to the statute links.In addition, I believe you will find this summary of the law and process very helpful: http://www.co.delaware.oh.us/COURT/probate/index.php/formsservice/disintermentHere is the statutory language:"517.23 Disinterment of body buried in cemetery.(A) Subject to divisions (B), (D), and (E) of this section, the board of township trustees, the trustees or directors of a cemetery association, or the other officers having control and management of a cemetery or the officer of a municipal corporation who has control and management of a municipal cemetery shall disinter or grant permission to disinter any remains buried in the cemetery in either of the following circumstances:(1) If the surviving spouse of the decedent is eighteen years of age or older, within thirty days after the filing of an application of the surviving spouse made in accordance with division (A) of section 517.24 of the Revised Code and payment by the applicant of the reasonable costs and expense of disinterment;(2) On order of a probate court issued under division (B) of section 517.24 of the Revised Code and payment by the person who applied for the order under that division of the reasonable costs and expense of disinterment. (B) No disinterment shall be made pursuant to this section and section 517.24 of the Revised Code if the decedent died of a contagious or infectious disease until a permit has been issued by the board of health of a general health district or of a city health district.(C) Upon disinterment of remains under division (A)(1) or (2) of this section, the involved board, trustees, directors, other officers, or officer of the municipal corporation shall deliver or cause to be delivered the disinterred remains to the applicant surviving spouse or, if the disinterment was pursuant to court order issued under division (B) of section 517.24 of the Revised Code, to the person who applied for the order under that division.(D) The board of township trustees, the trustees or directors of a cemetery association, or the other officers having control and management of a cemetery or the officer of a municipal corporation who has control and management of a municipal cemetery may disinter or grant permission to disinter and, if appropriate, may reinter or grant permission to reinter any remains buried in the cemetery to correct an interment error in the cemetery if the board, trustees, directors, other officers, or officer of the municipal corporation comply with the internal rules of the cemetery pertaining to disinterments and if the board, trustees, directors, other officers, or officer of the municipal corporation provide notice of the disinterment to the decedent's last known next of kin. The board, trustees, directors, other officers, or officer of the municipal corporation may correct an interment error under this division without a court order or an application by a person.(E)(1) A person who is an interested party and who is eighteen years of age or older and of sound mind may apply to the probate court of the county in which the decedent is buried for an order to prevent the decedent's surviving spouse from having the remains of the decedent disinterred. An application to prevent the disinterment of the remains of the decedent shall be in writing, subscribed and verified by oath, and include all of the following:(a) If applicable, a statement that the applicant assumed financial responsibility for the funeral and burial expenses of the decedent;(b) If division (E)(1)(a) of this section is inapplicable relative to the applicant, a statement that the applicant did not assume financial responsibility for the funeral and burial expenses of the decedent;(c) A statement that the applicant is eighteen years of age or older and of sound mind;(d) The relationship of the applicant to the decedent;(e) A statement of the applicant's reasons to oppose the disinterment of the remains of the decedent. (2) An applicant for an order to prevent the disinterment of the remains of the decedent under division (E) of this section promptly shall give notice of the filing of the application by certified mail, return receipt requested, to the decedent's surviving spouse. The notice shall indicate that the applicant has filed an application for an order to prevent the disinterment of the remains of the decedent. (F) As used in this section and in section 517.24 of the Revised Code:(1) "Cemetery" and "interment" have the same meanings as in section 1721.21 of the Revised Code.(2) "Disinterment" means the recovery of human remains by exhumation, disentombment, or disinurnment. "Disinterment" does not include the raising and lowering of remains to accommodate two interments within a single grave and does not include the repositioning of an outside burial container that encroaches an adjoining burial space.Effective Date: 10-20-1999" see http://codes.ohio.gov/orc/517.23 "517.24 Form of application for disinterment. (A) An application by a surviving spouse for disinterment under section 517.23 of the Revised Code shall be in writing and shall state that the applicant is the surviving spouse of the decedent, that the applicant is eighteen years of age or older and of sound mind, the disease of which the decedent died, and the place at which the remains shall be reinterred. The application shall be subscribed and verified by oath.(B)(1) A person who is eighteen years of age or older and of sound mind and who is not the surviving spouse of the decedent involved may obtain a court order under this division for the disinterment of the remains of the decedent. Any person who is eighteen years of age or older and of sound mind, including, but not limited to, the person who assumed financial responsibility for the funeral and burial expenses of the decedent, and who wishes to obtain a court order for the disinterment of the remains of the decedent may file an application in the probate court of the county in which the decedent is buried requesting the court to issue an order for the disinterment of the remains of the decedent. The application shall be in writing, subscribed and verified by oath, and include all of the following:(a) If applicable, a statement that the applicant assumed financial responsibility for the funeral and burial expenses of the decedent;(b) If division (B)(1)(a) of this section is inapplicable relative to the applicant, a statement that the applicant did not assume financial responsibility for the funeral and burial expenses of the decedent;(c) A statement that the applicant is eighteen years of age or older and of sound mind;(d) The relationship of the applicant to the decedent;(e) A statement of the place at which the remains will be reinterred;(f) The name, the relationship to the decedent, and the address of the decedent's surviving spouse, of all persons who would have been entitled to inherit from the decedent under Chapter 2105. of the Revised Code if the decedent had died intestate, and, if the decedent had a will, of all legatees and devisees named in the decedent's will. (2)(a) Subject to division (B)(2)(b) of this section, upon the filing of an application for an order for disinterment of remains under division (B) of this section, the applicant promptly shall give notice as described in this division by certified mail, return receipt requested, to the decedent's surviving spouse; to all persons who would have been entitled to inherit from the decedent under Chapter 2105. of the Revised Code if the decedent had died intestate; if the decedent had a will, to all legatees and devisees named in the decedent's will; and to the board of township trustees, the trustees or directors of a cemetery association, or the other officers having control and management of the cemetery in which the remains of the decedent are interred or to the officer of a municipal corporation who has control and management of a municipal cemetery in which the remains of the decedent are interred. The notice shall indicate that an application for disinterment of the remains of the decedent has been filed.(b) A person entitled to be given the notice described in division (B)(2)(a) of this section may waive the right to receive the notice by filing a written waiver of that right in the probate court.(c) The fact that the notice required by division (B)(2)(a) of this section has been given, subject to division (B)(2)(d) of this section, to all persons described in division (B)(2)(a) of this section who have not waived their right to receive the notice and, if applicable, the fact that certain persons described in that division have waived their right to receive the notice in accordance with division (B)(2)(b) of this section shall be evidenced by an affidavit of the applicant for the order for disinterment, and the applicant shall file the affidavit in the probate court.(d) An applicant for an order for disinterment is not required to give a notice pursuant to division (B)(2)(a) of this section to persons whose names or places of residence are unknown and cannot with reasonable diligence be ascertained, and the applicant shall file an affidavit in the probate court specifying any persons who were not given notice pursuant to division (B)(2)(a) of this section and the reason for not giving notice to those persons. (3)(a) Except as otherwise provided in division (B)(3)(b) of this section, upon the filing of an application for disinterment of remains and the giving of the required notice under division (B)(2) of this section, the probate court promptly shall conduct a hearing to determine whether to issue an order for disinterment of the remains of the decedent. Except as otherwise provided in division (B)(3)(a) of this section, at the hearing, the court, in its discretion, may issue an order for disinterment of the decedent's remains if good cause for disinterment is shown. If a person who is an interested party and who is eighteen years of age or older and of sound mind establishes by a preponderance of the evidence at the hearing that the issuance of an order for disinterment of the decedent's remains under division (B)(3) of this section would be against the decedent's religious beliefs or ascertainable desires, the court shall not issue the requested order unless the court finds a compelling reason to issue it. If the court is not so prohibited from issuing the requested order and exercises its discretion to issue the requested order for disinterment of the decedent's remains in accordance with division (B)(3) of this section, the court promptly shall deliver the order to the applicant. An order of the court for disinterment of the decedent's remains shall specify that the board of township trustees, the trustees or board of the cemetery association, or other officers having control and management of the cemetery or the officer of a municipal corporation who has control and management of the municipal cemetery shall have a period of at least thirty days from the receipt of the order to perform the ordered disinterment.(b) The court is not required to conduct a hearing under division (B)(3)(a) of this section if each person entitled to be given the notice described in division (B)(2)(a) of this section has waived that right by filing a written waiver of the right to receive the notice in the probate court." see http://codes.ohio.gov/orc/517.24All my best and encouragement. Thank you for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! 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Expert:  J. Warren replied 8 months ago.
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