LGBT Estate Planning

Maryland Lesbian, Gay, Bisexual
& Transgender Estate Planning

500 E Pratt St, Suite 900, Baltimore, MD 21202-3133 • 410.332.8626 • info@mdlgbtestateplanning.com

Of the things we’d rather not think about, death certainly tops the list. But whether you see the end of life in spiritual, practical, or philosophical terms, it’s something we all must confront eventually. In the words of one person’s living will, “Death is as much a reality as birth, growth, maturity, and old age—it is the one certainty.”

The unpleasantness of the topic can make planning for death easy to put off. In fact, the vast majority of Americans will leave this earth without ever having prepared a will. But when the reality of death is fast approaching, perhaps through a serious illness, we should seize the opportunity to prepare for what lies ahead.

Here are five things to consider doing:

Robert Burns famously said, “The best-laid plans of mice and men often go awry.” Burns was an 18th century Scottish poet, but he could just as easily have been a modern Estates & Trusts attorney. Too often, this familiar saying applies to the estate of someone who has died.

Even if the person had a will, the final determination of who gets what might be dramatically different from what was expected. Why would this be? The simple fact is that a will can do only so much. It controls the assets that you own in your name alone and that do not name a beneficiary. These “probate assets,” as they are called, include things like a house, car, or bank account without a co-owner.

The problem is that for most of us, the bulk of our wealth resides in assets that do have a co-owner or beneficiary. Think joint bank accounts, life insurance policies, and retirement accounts. Upon your death, these “non-probate assets” will transfer to the co-owner or named beneficiary—regardless of what your will might say.

Providing for someone you care about can be one of life’s great challenges. You may have a spouse or partner who depends on you financially. Or a relative with money problems who sometimes turns to you for help. Or perhaps you are fortunate enough to have children and want to give them every possible advantage in life. Whoever you care for, your life’s work may well focus on supporting them.

If someone does rely on you, one of the hardest questions to consider is what they would do without you. You might be able to provide for the person financially by leaving them an inheritance under your will or making them the beneficiary of your life insurance. But money can be squandered, and it may need to be protected from bill collectors, unscrupulous “friends,” and possibly even the loved one himself.

One of the most effective ways to avoid these hazards is to create a “spendthrift trust.” Whether you are leaving cash, securities, real estate, or the proceeds of an insurance policy, the assets will be managed by one person, called the “trustee,” for the benefit of your loved one, the “beneficiary.” The trust can be set up to disburse money in a controlled manner, ensuring that your loved one is well provided for.

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 after the one that goes awry. And yes, barn doors have been known to be 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 aren’t burdened by 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. I need to make sure she is protected in case I’m not so lucky next time.”

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 urgent.