I. Wills & trusts.
A will is a legal document that allows you to designate who will receive your property when you die, and how and when they will receive it. If you die without a will, your property will be distributed to your legal heirs. This is called intestate succession. With the exception of three states, a same-sex partner is NOT considered to be a legal heir and therefore is not legally entitled to inherit your property if you die without a will. This is true regardless of how long you have been with your partner and regardless of your relationship with your blood relatives.
The three states in which same-sex partners do have intestacy rights are California, Hawaii, and Vermont. In California, a registered domestic partner is entitled to inherit if the other partner dies without a will. In Vermont, the same is true for spouses in a civil union, and in Hawaii the same is true for reciprocal beneficiaries. It is important to note, however, that in these three states, if you die without a will, the percent of your property that will go to your domestic partner/civil union partner/reciprocal beneficiary will depend on whether you have other living heirs when you die and if so, how many. Thus, even in a state in which your partner has intestacy rights, you need to draft a will and/or prepare a trust to control what and how much your partner will receive after your death.
In addition to allowing you to determine who will get your property, a will also allows you to say who you want to supervise the distribution of your assets. You can also include preferences in your will about funeral arrangements, disposition of your remains, and who will be in charge of your funeral or memorial service. Finally, if you have children, you can include a provision in your will nominating a guardian to care for your children after your death. A court is not bound to honor a nomination of guardianship but, in the absence of any challenge, they are often respected.
Another way to designate who will receive your property upon your death is through a revocable living trust. A living trust is similar to a will in that it allows you to say who should get what; it differs from a will in that property left by a will must go through the court probate process - which means that the will must be proven valid, and the person's debts are paid before the property is distributed. The probate process often takes about a year. With a living trust, this process is avoided and the property goes directly to the people you have named in the trust. In some circumstances, transferring the property through a living trust rather than a will also helps reduce or avoid some estate taxes.
A revocable living trust permits you to transfer your ownership of your assets to the trust, while still maintaining control over those assets during your lifetime. Although the trust is technically the owner of the property, you maintain management and control of the property as the trustee.
There are some drawbacks to using a living trust and, depending on the type of assets you have, the costs may outweigh the benefits, so you should consult an estate planning attorney before making a decision about whether a revocable living trust makes sense for you. In addition, you should be very cautious about using pre-printed trust forms, as opposed to having an attorney draft a trust document for you.
Sample will forms can be purchased at stationery stores, and Nolo Press also has a number of do-it-yourself books related to wills and estate planning, including: ??Nolo's Simple Will Book, by Attorney Denis Clifford, provides explanatory information, as well as forms you can fill out on your computer.
* Quick & Legal Will Book, by Attorney Denis Clifford, provides sample wills and instructions for typing your own basic will.
* Plan Your Estate, by Attorneys Denis Clifford & Cora Jordan is an overview of wills, trusts, estate taxes, and health care and financial directives.
* Estate Planning Basics, by Attorney Denis Clifford is an overview of the fundamentals of estate planning - wills, trusts, estate taxes, and financial and health care directives.
* Make Your Own Living Trust, by Attorney Denis Clifford explains how to create a living trust, transfer property to the trust and amend or revoke the trust at any time.
If you have a large estate or desire extensive estate planning, you should consult with an attorney in your area. In addition, if you use one of the resources listed above or another resource to draft your own will or living trust, you should ALWAYS have a qualified attorney review your documents to make sure they comply with the legal requirements in your state and accurately reflect your intentions.