Private burials: Who's keeping track?

While rare, it’s perfectly legal to perform a burial on your own land in Montana without informing anyone.

But what are the effects of this and how does a private burial impact property and families in the future?

Lincoln County Clerk and Recorder Robin Benson spoke about the process in a recent interview about the Private Family Burial Grounds Notice. She has distributed a copy to Schnackenberg Funeral Home and hopes they would then pass the document onto families for discussion on whether they want that information on public record or not.

“It's really up to the public, to the families,” Benson said.

The idea of using the Private Burial Grounds Notice was one that Benson brought up at a county commissioner meeting in 2022. She says that she was mostly trying to spark conversation and try to make people more aware of the document, as it does nothing but make the county aware of the burial.

In contrast, informing the state of the burial can mean the creation of a cemetery, and this can have an impact on property rights when the property changes hands, according to the Lincoln County Coroner Steven Schnackenberg.

“It's super rare here, maybe other countries see more of it,” Benson said. Benson also said that she isn’t aware of a private burial being documented with the county in the past two years, but that she has seen it on paperwork before.

“It’s kind of a gray area,” Benson said. “I want the public to be aware that there is a document to record that site.”

With the public informed of this, a family can discuss whether this is something they want to be recorded into perpetuity for the protection of the site, Benson said.

She recognizes that there is, of course, people's desire to be private, but in order to protect these burial sites into perpetuity it can be important to document them.

Schnackenberg confirmed there is no mandatory documenting process.

“The clerk and recorder has recommended that they make a declaration that they can put on record, but that is not a required thing,” Schnackenberg said. “In the state of Montana you can bury a person on your property without declaring that to anybody.”

Schnackenberg said that through administrative law some counties have tried to mandate documentation, but even then the state is not involved.

“It's a good thing to record that, but cemeteries are not required to be recorded,” Schnackenberg said, adding that even one body can be considered a cemetery.

“If you register a cemetery with the state that land can never be reclaimed,” Schnackenberg said.

This means that people who want to buy property with a cemetery set aside on it would need to be ready to provide permanent access to the cemetery for the deceased person’s family.

This is why many families have chosen not to register cemeteries with the state, because they can sell the land, even move the body somewhere else, without having to create an access easement for the family of the deceased, he said.

“If the cemetery is registered with the state and somebody wants to buy that property, and they purchase it, the family can still (move) that body, however that still remains a cemetery and they still have to provide access to it,” Schnackenberg said.

What Benson has recommended is that families let the county know that there is a burial.

Registering a burial with the county is simply for future reference as some burial sites have been lost over time and other than the family knowing about the burial it may be otherwise unknown, Schnackenberg said.

“(A burial is) a mandatory disclosure. If you’re selling a piece of property and you know there’s a burial site there that's a mandatory disclosure,” Schnackenberg said.

Schnackenberg has heard of burials being discovered on a property by surprise. There have been Native American remains found in Lincoln County as well, and when those are found tribal officials are notified, he said.

In other cases he’s heard of undocumented burials from modern times being discovered.

“That’s very rare. Obviously if it's an unrecorded burial and the funeral home doesn't know about it, then the county is obligated to assist and make sure that the death is a natural death, as opposed to something fishy like a homicide or a (death by suicide) or something like that,” Schnackenberg said.