Ernie Banks and the Illinois Disposition of Remains Act

First, a confession: I am a lifelong die-hard Cubs fan (an inherited condition). Yes, I know, that can take a toll on one’s mental health. And yes, I actually do believe that ‘next year’ could be this year. Or at least next year.

No player embodies Cubs baseball more than the legendary Ernie Banks. Even for fans like myself who never saw him play, there is an inherent sense that Mr. Cub was not only one of the greatest players of all-time, but also one of the all-time best persons to play baseball.

On January 23, Banks, a Chicago resident, died of a heart attack at the age of 83. His legacy was widely celebrated, from Cubs owner Tom Ricketts to President Obama.

In a disturbing turn of events, on February 13 it was widely reported that a court battle had erupted over the final disposition of Banks’ remains. News reports state that:

“According to court records, Elizabeth Banks filed a petition to prevent a woman who describes herself in the documents as a longtime friend of Ernie Banks, his caretaker and the executor of Banks’ estate from having him cremated. The woman, Regina Rice, asserted her rights to dispose of Banks’ remains after his death last month at the age of 83, according to documents filed by Elizabeth Banks’ attorneys on Feb. 2.”

Elizabeth Banks is Ernie’s fourth wife. Ernie had filed to begin divorce proceedings back in 2012, but the divorce was never finalized. On February 9, Regina Rice was appointed as the executor of Ernie’s estate pursuant to a Will dated October 17, 2014. The will, which was admitted to probate, reportedly does not address the disposition of his remains.

Before I review the legal issues, a few initial notes:

In 2006, Illinois enacted the Disposition of Remains Act (“DORA” at 755 ILCS 65/). DORA provides that “a person may provide written directions for the disposition or designate an agent to direct the disposition, including cremation, of the person’s remains.” Written directions or designation of agent can be made in a:

• Cremation authorization form that complies with the Crematory Regulation Act (410 ILCS 18/65(b));
• Prepaid funeral or burial contract;
• Illinois statutory Power of Attorney for Health Care that contains the power to direct the disposition of remains (755 ILCS 45/4);
• Written instrument that satisfies the provisions of DORA (an “Appointment of Agent to Control Disposition of Remains” form); or
• Will (that has written instructions as to disposition of remains).

1. Pre-Need Contracts. A cremation authorization form should have first priority, if employed. That form gives a person the option to choose to either: (a) prevent “survivors” from cancelling the cremation, or (b) give the designated survivor(s) the choice to select alternative arrangements. We don’t know if Banks made pre-need cremation arrangements, but if he had, that would control. Similarly, if Banks had a prepaid funeral or burial contract that expressed his wishes, that should control.

2. Designation of Agent. If pre-need arrangements were not made, then we look to either a Power of Attorney for Health Care or a DORA ‘Appointment of Agent’ form. The statutory Illinois POA form (both 2015 and the prior version) gives the designated agent authority over the disposition of remains, unless that power is stricken. If a different agent is desired for disposition of remains as opposed to lifetime health care agent, then the DORA form can be used to appoint a different agent for this purpose. We don’t know if Mr. Banks utilized either of these advance directives, but if he did, his designated agent should have authority.

3. Instructions in a Will. Finally, we look to the Will for any instructions. 755 ILCS 65/5(2) gives next priority to “any person serving as executor or legal representative of the decedent’s estate and acting according to the decedent’s written instructions contained in the decedent’s will.” In other words, the executor (here, Regina Rice), as such, is only given priority if disposition of remains instructions are actually contained in the will. According to the news reports, Banks’ Will does not contain instructions regarding disposition of remains.

This actually makes good policy sense — some people appoint a bank, or other professional or independent party, as executor to carry out the (financial) terms in their will. But that does not mean that they want the bank representative to decide on cremation or burial arrangements. Moreover, the will is not typically where such instructions are (or should be) detailed, for a couple of reasons: (1) the will is often not located or filed until after the burial or disposition arrangements are made; and (2) a Will is filed and becomes public record — most people probably do not want to publicly detail these instructions.

So, who has legal authority if NONE of these types of written direction or designation is employed?

In the absence of one of the above methods for written instruction or designation of agent, under DORA, priority to direct the disposition of remains is first given to “the individual who was the spouse of the decedent at the time of the decedent’s death” (I have no clue why the statute doesn’t simply say ‘surviving spouse’). In this case — despite the pending (but not finalized) divorce proceedings — that is Elizabeth Banks.

Side note: If there is no surviving spouse, priority is then given to the majority of adult competent children, then to parents, then to the next closest adult relatives.

Bottom line: Unless Ernie Banks employed one of the recognized written methods of instruction or designation of agent, his (reportedly) estranged wife would have legal priority to direct the disposition of his remains.

While we don’t (yet) know if Mr. Banks provided written directions, he once famously told reporter Jerome Holtzman that after he died he wanted ‘my ashes spread out over Wrigley Field — with the wind blowing out.’ In-between a doubleheader seems fitting to me.

In any case, hopefully the interested parties here can work out appropriate final arrangements without extended litigation, and Mr. Cub can rest in peace.

Oddly enough, Banks is not the first (or second) Hall of Fame slugger to be the subject of a disposition of remains dispute. In 2006, the fiancée and children of Kirby Puckett litigated for control of his ashes. And in 2002, the family of Ted Williams fought over whether Williams’ remains would be cremated or cryogenically frozen (they finally settled on the latter).

But wait, there’s more to come…

It appears that this issue is just the first skirmish in the estate — in the initial probate pleadings, Elizabeth Banks’ attorney reportedly states that the Will was “allegedly signed” by Ernie Banks. Moreover, as surviving spouse, Elizabeth can ‘renounce’ the will and take her ‘statutory share’ (one-third) of the probate estate. She can also request a spousal award (minimum $20,000) from the probate estate.

And just yesterday (Monday, Feb. 16) — as I was completing this post — the following news went public (per the Chicago Tribune):

“Joey and Jerry Banks, the adult sons of Ernie Banks, released a statement alleging that Banks’ caregiver Regina Rice of Chicago coerced Banks into signing a will that gave her control of his estate.” Banks’ sons’ attorney, Mark Bogen, said that they “will vigorously fight and contest this will.”

A new Illinois probate law targeting ‘caregiver’ undue influence is the subject of my article published in the January 2015 Illinois Bar Journal. However, this new law cannot be directly applied to the October 17, 2014 Will because the new law applies only to instruments signed on or after the January 1, 2015 effective date (even though the statute was enacted on August 26, 2014). The usual will contest issues — capacity and undue influence — are likely to be raised.

One more ‘twist’: in 2008, Elizabeth and Ernie Banks (at age 77) reportedly adopted an infant girl (per Wikipedia and this 2009 NPR interview and here). As a dependent minor child, she has rights as well.

Perhaps these are topics for future blog posts.

Takeaways (so far):

1. Provide written instructions and/or appoint an agent to have authority to direct disposition of remains. A Power of Attorney for Health Care is a must.

2. Go Cubs and Let’s Play Two!