a Last Will + Testament. morbid, I know. I feel like no one under the age of 30 even thinks about a Will (unless you have kids). but a will (Last Will and Testament) is actually an extraordinarily important document for any person to have, but especially for those in the LGTBQ+ community.
what exactly is a Will? a Will is a legal document that describes how you (the testator) wish your estate to be distributed when you pass. this includes children, pets, finances, property, etc. basically, all the important things!
if you die without a will, this is called “intestate”. what happens then is that the laws of your state where you resided will dictate how your assets will be distributed. typically, everything will go to your spouse or next of kin. so why in the LGBTQ+ community is this so important? well, if same-sex marriage is overturned and then you live in a state where it is no longer recognized, you need to make sure you’re covered. you want to make sure that you list your partner as the one you want to inherit everything (also why it’s important for both you and your partner to have your names on important things such as the deed to your home, your car, bank accounts, etc. – so this way, it automatically belongs to him / her / them as well).
even more important is what would happen to your children. now, typically, if a parent dies, the other biological (or adoptive) parent will receive custody – even if you are divorced. if there is no other parent, or the other parent is missing or deemed “unfit”, then a court will appoint a guardian. not every state places a child with a biological relative – they look at what is in the best interest of the child. that being said, this will involve the courts. this means potentially putting your child(ren) through hearings and interviews and a battle with other family members over who should have custody (sometimes grandparents come in and want guardianship).
I don’t mean to scare you but I want you to be informed of what could happen and what you can do to prevent the worst case scenario from happening.
how can you prevent putting your child(ren) through this? name a guardian in your will. it seems silly to have to name your spouse, but you never want to be too careful – especially when it comes to the LGBTQ+ community.
finally, you may have other assets such as life insurance, a 401K, investment accounts, etc. where you can list a beneficiary directly on that account. in these cases, who you list on these accounts as the beneficiary will actually override someone listed in your will (or lack thereof!). so if you don’t have a will and you pass, these accounts will automatically go to your listed beneficiary (when they fill out the paperwork, of course). if you don’t have anyone listed as a beneficiary then you will want to (1) add someone or (2) spell it out in your will who will inherit certain accounts.
now, making your will valid. you need to make sure that you sign it and have two witnesses who watch you sign and then sign it themselves (ideally, two people not listed in the will). while most states do not require a will to be notarized, you may want to include something called a “self-proving affidavit,” which does have to be notarized. this is a separate document that is a sworn statement saying that you are of sound mind and the witnesses actually saw you sign your will. this document needs to be signed by you, the two witnesses and notarized. while this is not required, it can help the probate process move more quickly after you pass because it proves the validity of the will. (probate is the legal process of distributing your estate after you pass — the court determines the validity of the will during this process)
I encourage you to make copies of the will and give it to your family so they have it as well. I also scanned ours into our computer and emailed them to my parents so that it can be easily accessed.
of course, I encourage you to work with a lawyer to make sure you account for all the things, but for those of you who cannot yet afford one, I fond an article called “The 8 Best Online Will Makers of 2020“. while I can’t speak to the validity of those sites, you can do some research!
get a will ASAP. even if you type something up on your computer, sign it, have two witnesses sign it, get it notarized and give copies to family!
what should go in your will:
- name an executor and two back ups.
- name guardians for your child(ren) – this also can include future children as it will say something like: “In the event of my death, I grant ______ guardianship of my current and future children.” Again, I suggest listing a few people in order of priority in case someone passes.
- name how you would like to distribute your assets. you can say – I would like everything to go to my spouse (put their name) and in the event of my passing, to my children.
- the proper signatures – you, two witnesses + a notary.
*while I am an attorney, this is not legal advice but rather legal information. as always, please contact a lawyer where you reside to help with your specific situation.