The idea of being “proactive” has never held much appeal. Burglar alarms are often installed only after the house has been looted. Trip insurance is frequently purchased for the vacation taken after the one that goes awry. And yes, barn doors are often locked after the horse has been stolen.
The same is true of having a will prepared. It’s one activity that can’t be put off until after the need arises. Instead, it is often some galvanizing life event that first prompts someone to prepare a will.
• “My mother died and her estate was a mess. I want to make sure my partner and children don’t have to deal with my poor planning.”
• “I am going on a vacation and will be traveling by air and sea. It will be easier to relax if I know my affairs are in order, just in case!”
• “I am having surgery and want to make sure my will is ready, on the off chance things don’t go as planned.”
• “We are getting married, and I heard that if I were to die, my spouse wouldn’t get all of my estate. I want a will to make sure he gets everything.”
• “I was in a serious car accident, and I realized that if I hadn’t survived, my partner would have inherited nothing from my estate.”
Instead of waiting for a wake-up call, when should you write your first will? For those of us in the LGBT community, having a will prepared can be especially important. If you are married and die without a will, your spouse is entitled to only part of your estate. Preparing a will helps to ensure that he or she gets everything – although a will is only the first step.
If you are not married but have a partner, this important person in your life will probably get nothing from your estate if something happens to you. From a legal standpoint you are not family but strangers, so you the person who should probably be your primary beneficiary with instead be left empty-handed.
For those of us who are fortunate enough to have children, your exact legal relationship with each child will determine whether he or she receives anything from your estate, unless you have a will that says otherwise. Naturally born children, adopted kids, stepchildren, and children born through a surrogate can have different rights of inheritance depending on the legal action that was taken – or that should have been taken – when you welcomed the child into your home.
Having a will that names your children specifically will help to ensure that they inherit from you, regardless of your legal relationship with them. Your will can also name guardians to care for any minor children and appoint a trustee to manage their inheritance until they reach a certain age.
Even if you are single and child-free, having a will prepared is your opportunity to name someone to settle your estate. In the absence of a will, this duty may fall to an estranged relative or even someone you owe money to at the time of your death.
To ensure that your personal representative, or “executor,” will be someone you trust, you can designate a primary personal representative and a backup, in the case your first choice is unable or unwilling to do the job. With the right person in charge, you can be confident that important tasks like dealing with your furniture, jewelry, car, and other personal property is handled with sensitivity and care.
Bear in mind that a will is only part of your estate plan. You should also have a durable power of attorney and an advance medical directive. Just as important as a will, these documents enable you to name someone you trust to manage your finances and medical care in case you ever become unable to do so for yourself.
Rather than waiting for some jarring life event, the best time to prepare a will is now. Call an attorney and say you want to be ready for whatever lies ahead.
- Lee Carpenter is an attorney dedicated to serving Maryland’s LGBT+ community. His practice focuses on estate planning and administration, as well as some small-business matters. He works at the Baltimore law firm of Niles, Barton & Wilmer and teaches Estates & Trusts at the University of Maryland Carey School of Law as an Adjunct Professor. He has written regularly for Baltimore Out Loud since 2014 and is a frequent lecturer on topics related to same-sex marriage and LGBT law. A Maryland native, he is proud to call Baltimore home and lives in the city with his husband and son. To find out more, visit https://mdlgbtestateplanning.com/.