While it is a hard topic to think about, talking about death (let alone planning for it), is the last thing many of us want to do! Nevertheless, planning for what happens after you pass away is the ultimate act of thoughtfulness and kindness that your loved ones will forever thank you for. Executing a Last Will and Testament now, especially if you are a member of the LGBTQ+ community, will inevitably help those you love after you pass away.
What is a Last Will and Testament?
A Last Will and Testament is a legal, binding document that allows you to control how your estate, which includes your personal property (tangible belongings and money) and your real property (land and everything that is permanently attached to the land), is distributed upon your passing. Essentially, a Last Will and Testament allows you to determine “who gets what” and who is in charge of distributing your “stuff” after you pass away.
Why Execute a Last Will and Testament?
No matter who you are and how much money you have, a Last Will and Testament is not something you should wait to execute; tomorrow is never guaranteed. Without having executed a Last Will and Testament, your wishes for after you pass away will be irrelevant, and the government will distribute your property regardless of your intent.
Without having executed a Last Will and Testament, upon your death, your estate will be distributed according to your state’s specific laws. Your family will have absolutely no say in who gets your assets, how much a person is to get, and who is chosen to distribute it. On top of it all, the answer to what will happen to your estate may be delayed in court proceedings for years and years, leaving your loved ones with nothing but stress and aggravation.
Executing a Last Will and Testament will leave your family with no questions regarding your estate once you pass. In your Last Will and Testament, you will have outlined your exact wishes for your assets, and even for your children, which will allow your family to grieve without having to worry about (or fight about) anything else. With a Last Will and Testament, you take the power away from the state in determining what is to happen once you are gone!
What sort of things should I include in my Last Will and Testament?
In your Last Will and Testament, you must include an executor (otherwise known as a “personal representative”). This is the person you have chosen to distribute your estate once you have passed. This person does not need to be someone that you are leaving anything to, but they should be a person you trust will follow the instructions you have laid out.
You will also explain exactly how you would like your estate to be distributed once you pass. This can be as specific (i.e., “I leave my 2019 Honda Accord to my sister and my engagement ring to my friend, Ashley Smith, upon my death”) or as general (i.e., “I leave my entire estate to my spouse”) as you want. This is the perfect way to ensure that you have a voice, and that your wishes are met, even after you have passed.
If you have children, it is also important to include a guardian provision in your Last Will and Testament. This provision states exactly who you would like to have guardianship of your child(ren) once you pass away. A lot of parents may believe they are fully protected without this provision—they are each the legal parent of the child(ren) so when one parent passes away, the other parent will still have custody, right? Unfortunately, the law has a funny way of changing and having a reputation for being untrustworthy, so the extra guardianship provision serves as an extra layer of protection for you and your children.
If I am a member of the LGBTQ+ community, should I execute a Last Will and Testament?
While it is important for all individuals to execute a Last Will and Testament, it is arguably even more important for those in the LGBTQ+ community.
As mentioned above, without a Last Will and Testament, your estate will inevitably pass through the intestacy laws of your state. Notably, each state has different intestacy laws and without a Last Will and Testament the distribution of your estate in one state may look vastly different than the distribution of your estate in another.
Leaving fate in the hands of the laws of the state is something that most of us in the LGBTQ+ community do not love to do willingly. After all, the law does not always protect us. In fact, the law sometimes does just the opposite. Consequently, for the LGBTQ+ community, executing a Last Will and Testament is the extra layer of protection needed to ensure that your wishes are met after you pass away, no matter who you love!
About the Author:
Jaemie R. Fasanello is an associate attorney with the Law Offices of Mark R. Scialdone, who practices family and probate law in Massachusetts. Jaemie focuses her practice on LGBTQ+ family and probate law, as well as estate planning. When she is not working, Jaemie loves spending time with her fiancée, Taylor, and their two cats!