Gay Wills & Trusts wills and trusts

As you know, putting your wishes in a legal writing is the most important thing you can do to protect your family. Without a Will and/or Trust, same-sex partners have no legal rights to make decisions for one another, raise each others children or inherit one another's property.

Why Just a Will is Not Enough

Attorneys often advertise that they will create your Will at a very low cost because the attorney knows that he or she will probably also probate your will after your death. If your estate is subject to probate, the attorney stands to make a few thousand dollars or more guiding your loved ones through this complex process.

Attorneys charge more to create a Trust because he or she knows a Trust is not subject to probate and there will be no additional opportunity to make money during probate. That is why a Trust is more expensive -- to give the attorney their fee upfront!

Comparatively, it is no more difficult or time consuming to draft a simple Trust than it is to write a Will. Granted, there are complicated estate plans for the very wealthy... however, most of us simply need to put our wishes in a basic writing in order to protect our partner and/or children.

All of us need to have a Last Will and Testament in order to make sure our property passes to the people we love, but same-sex partners need even more protection that can be acquired with the use of a Living Revocable Trust.

Why Should You Have a Living Trust?

  1. Any property passing to your partner, family, friends or other beneficiary pursuant to a Will is subject to the costly and time-consuming process of probate.
  2. A Last Will can, and frequently is, contested by the biological family of the decedent, especially if they have not come to terms with choices during life. In addition to family members interfering with your partner’s rights, now the state and federal governments have taken an interest in thwarting our wishes to benefit our partner when we die.
  3. A Last Will and Testament is public. Anyone can go to the courthouse and read the contents of your Last Will after you die.

Unlike a Last Will and Testament, a Living Trust is less likely to be successfully challenged by disgruntled family members and/or others. With the laws becoming increasingly hard on same-sex couples, this may be the most important reason of all to have a Trust in place.

A Trust takes effect at the moment it is signed. You live with your Trust (hopefully) for many years before anyone else assumes management. Financial institutions where you have accounts will have become accustomed to dealing with your Trust. So, when you become disabled or die, your partner “steps into” your shoes as the Trustee of your Trust, no one is surprised or indignant. It is a smooth and easy transfer -- no frozen assets -- no probate -- no court -- no judges.

Contrast this with a Last Will and Testament that does not take effect until you die. Obviously, when you are dead you will not be available to “defend” your choices and therefore, a judge may be asked to determine whether or not your Will is valid. There may be questions about whether or not you were under any undue influence or were of sound mind at the time that you signed the Will.

In short, a Living Trust permits the smooth, inexpensive transfer of your assets after death, without the court-supervised probate process. It makes it easier for your partner and for your family. Courts are less likely to invalidate a Trust since you put it into place (hopefully) years before your disability or death and lived with it during your lifetime.