A large part of my law practice is devoted to helping members of the gay, lesbian, bi-sexual and transgender (LGBT) community build a solid foundation for the future  -  in a world in which we are still denied many civil and human rights.  Picking my way through the maze of state and federal laws that directly affect LGBT lives, I pull together the rules that benefit us, and build on those, suggesting the best methods for protecting ourselves and our assets.

I am often contacted by prospective clients who say something like “I think I need a Will or a Power of Attorney.  I need something to make sure my partner will not have a problem if I pass away”.  Or, “My partner and I own a house.  We are joint tenants.  That means he can have the house if something happens to me, right?” 

My focus is to make “estate planning” understandable to everyone, and to ensure that we all have an opportunity to do the planning that will make our lives more comfortable and secure.  It is extremely gratifying to me to watch our clients move from uncertainty and concern about the future, to a feeling of security and satisfaction in their lives.  Good planning has good outcomes.

For members of the LGBT community, proper planning has always been especially crucial since our chosen families are normally not recognized by our government. Without the proper documentation in place, our families have little, if any, protection, and our wishes upon incapacity and death will most likely not be honored.

It is truly sad that many tragic situations could be avoided, or the turmoil of illness or death lessened with some basic estate planning.  Estate planning is not just for the rich, or even the old; it is something that every one of us must do regardless of age, relationship status, or wealth. Estate planning gives us the opportunity to do the right thing for our loved ones, by providing guidance and instructions on the distribution of our property upon our death.  Thorough estate planning also deals with handling incapacity while we are living.  An estate plan must get it right the first time - after incapacity or death, there are no second chances.

But what is estate planning?  The most basic estate plan should provide the following:

  • Instructions on who will make medical decisions if you are unable to do so
  • Details on the type of treatment you want if you are terminally ill
  • Appointment of a person to make financial decisions for you if you are unable
  • Instructions on the distribution of your property upon your death
  • Protections for your partner and chosen family
  • Appointment of guardians and provision for the care of your children

More comprehensive estate plans might include strategies to:

  • Reduce estate taxes
  • Protect your estate from creditors
  • Avoid probate
  • Provide for charitable giving

What if the unexpected happens and you haven’t done any estate planning?  The State of California has a plan for you which must be followed.  It may not recognize any of your wishes or concerns.  It may not be the best plan for protecting your assets  -  but it is the plan that will be carried out.

Designing an estate plan means carefully reviewing all of your relationships with family and loved ones; and your assets and desires for protecting and distributing them in the future.  In my practice, we begin with a detailed questionnaire which provides much of the information that is needed to develop a strong and comprehensive plan.  I discuss the legal options for achieving our clients’ goals, and we select those that best meet each client or family’s needs.

Some of the estate planning documents that are important to protect the relationships and assets of people in the LGBT community are:

  • Advance Healthcare and Personal Care Directives - identifies what medical care you want if you become incapacitated; and who will be responsible for making personal and medical decisions for you if you are unable to do so yourself
  • General Durable Power of Attorney - describes in detail the actions your appointed agent may take on your behalf to manage your financial and general affairs if you are unable to do so yourself
  • Last Will and Testament - states in clear terms how you wish your assets to be distributed to heirs and beneficiaries after your death, and names an executor to handle probate of your estate through the court probate process
  • Revocable Living Trust – establishes a trust which holds all your property and assets, and provides for estate management and asset distribution without the need for probate

Comprehensive estate planning can ensure that partners, children and others dear to you are guaranteed that your wishes for them will be carried out.  And that is a wonderfully comfortable feeling.
This article is part of an ongoing series of articles pertaining to legal issues in the LGBT community. Previous articles can be viewed at www.heritagelegal.com.  This information is intended for general information purposes only, and is not intended to provide legal advice.  Heritage Legal, PC has offices in Palm Springs and San Diego, CA.  The firm focuses on LGBT estate planning, domestic partnerships, same-sex marriage, probate, trust administration, and bankruptcy.  Chris welcomes questions and comments, and can be contacted at 888.974.3748, or by email: chris@heritagelegal.com