Monday, Mar 19, 2018

Source: Public Domain

Prior to World War II, information technology was non uncommon, especially in rural areas, for families to bury their deceased family unit members in a small-scale corner of their property. Now that some of those rural areas are not so rural anymore, a property owner may exist surprised to find that their land is host to the remains of prior owners from days gone by.

The owner of land that contains a family cemetery has 2 options with respect to the cemetery. The first is to let the cemetery to remain in place. The other choice is to obtain a courtroom order allowing the relocation of the cemetery. In Virginia, a circuit court tin order relocation of a family cemetery if the cemetery has been abased and it is non historically significant.

If the owner allows the cemetery to remain in place, that owner mostly has no duty to maintain the cemetery, other than any duty local proffer requirements and zoning ordinances might impose.

If an possessor wants to relocate an abased family cemetery on their belongings to an established cemetery, there are several steps the owner must take.

The owner should have a title examination performed to decide whether at that place is a reservation of rights to the cemetery in the chain of title. A reservation of rights to a family cemetery in a human activity is generally non considered a reservation of the fee-unproblematic ownership of the land that constitutes the cemetery. Rather, it is akin to an easement in gross that allows family unit members or other beneficiaries to make burials, visit, and maintain the cemetery. If the cemetery use is discontinued and the remains relocated, the reservation is extinguished, and the beneficiaries of the reservation accept no further rights to the underlying land.

The owner should also ostend that the cemetery is, in fact, abandoned. The Virginia Code specifically requires that to be considered abandoned, at that place can have been no human remains buried in the cemetery for a period of at least 25 years. In addition, the owner should confirm that the cemetery is in a state of busted and has non been maintained in any mode for a substantial time period.

Family cemeteries are more often than not not considered "historically significant" unless a historically meaning person is buried there, there is some unique architectural aspect of the cemetery, or the cemetery is direct connected to a historically pregnant place or event.

While not required, information technology is appropriate to become an archeologist to perform a cemetery delineation to ostend the boundaries of the cemetery and the location of any marked and unmarked graves.

It is also advisable to retain a genealogist to locate the descendants of those known to be buried in the cemetery and any other possible beneficiaries of any reservation of rights. If non all of the descendants can be located, the Virginia Lawmaking encourages the property owner to follow several guidelines, including publishing a discover for the public, and alerting local genealogical and historical societies.

If the cemetery has no historical significance and has been abased, the landowner can petition its jurisdiction's circuit court for an order allowing the relocation of the cemetery to an established cemetery where the graves would receive perpetual care and maintenance. The belongings owner is responsible for the relocation costs.

Prior to filing a petition to relocate a cemetery, it may exist appropriate to contact the known descendants of individuals buried on the property to explain the process to them and to establish some goodwill. The possessor should also ask them if they have cognition of other descendants who might non have been identified, and ask them for consent to relocate the graves at no expense to them.

The petition must name "all parties in interest," which is not conspicuously defined in the Virginia Code. Therefore, it might be appropriate to include "parties unknown" in the petition. The "parties unknown" must be served through publication in a local newspaper and a guardian advertisement litem must exist appointed.

It is within the discretion of a circuit court to determine whether the relocation is appropriate and, in the past, courts accept ordered relocations over the objections of some descendants.

Once the court has entered an lodge and the xxx-day appeal menstruation has run, the graves can be relocated. This is usually handled by a licensed funeral home.

In many instances, information technology is merely not economically feasible to relocate an abandoned family unit cemetery. Other times, the size of the cemetery or the topography of the site make relocation an economical necessity. These are things to consider before filing a petition for relocation.

As a property owner, determining the best mode to accost a cemetery on your land can involve numerous parties and high costs, but information technology can be washed.  If you have any questions about this issue, please contact John Rinaldi.