Advance Planning
Incapacity, Death, Inheritance, Succession & Wills

What happens if I die without a Will?
Is my partner protected by the law?
Why do I need a Will?
Who do I appoint to carry out my wishes?
Can I prepare my own Will?
Can my Will be challenged?
Who pays my debts when I die?
Are pre-paid funeral services worthwhile?
  What if I have substantial debts?
When am I considered incapable?
How do I appoint an attorney?
What can my attorney do?
Can an attorney make medical decisions?
Who should I appoint as an attorney?
Who can prepare the Powers of Attorney?
Wills – check list PDF 52kb New 20DE10

To protect each other in the event of incapacity or death, gay and lesbian partners must ensure they make appropriate arrangements.

This general advice stresses the importance for gay and lesbian partners to make a Will and attend to putting into place proper arrangements in order to provide some protection to a surviving partner and to ensure your wishes are fulfilled.

Please read the disclaimer

See also: [Advance Planning] [Laws] [Owning Property]

GayLawNet® Incapacity, Wills, Death & Inheritance
Updated on 10 September 2013 at 1724K (GMT+10)

What happens if I die without a Will?

Most common-law countries have laws which come into operation where there is an "intestacy" (that is, where you die without a Will or your Will is invalid).

Where you have no Will, or your present Will is invalid, your estate may go to your relatives and not to your partner or your partner may have to challenge other competing claimants in sometimes lengthy and almost always costly Court proceedings.

See also: [Laws] [Partners]

Is my partner protected by the law?

Many jurisdictions now have in place laws directed at protecting to gay and lesbian partners.

However, that protection may not be the same as that extended to heterosexual couples. For example, the law may have been amended to allow a much wider range of persons eligible to make a claim against an estate but such changes, whilst offering some possible protections to a same-sex partner in an intestacy, should not be viewed as a substitute for having a valid Will.

(For current developments, see GayLawNet® - Laws for information concerning the laws in particular jurisdictions and GayLawNews™ - Estates, Inheritance, Property, Succession).

Why do I need a Will?

If you wish to nominate a particular trusted person or persons to carry out  your wishes and to look after your Estate, or to give particular items of property or money or your belongings to your partner, friends or organizations, you quite simply must have a will.

Who do I appoint to carry out my wishes?

The "executor" and "trustee" of your Estates may be your partner, an attorney or other trusted professional, close friend or a family member.

Whoever you choose, you need to be quite sure that the person is committed to do what's best for your Estate and your family (and your partner and his or her family) and is not looking out for their own personal interest.

If there is any likelihood of family squabbles arising over the disposition of your Estate and especially if your Estate is of significant value, it may be preferable to appoint an trusted independent person as your Executor.

You may of course appoint more than one Executor and Trustee, though appointing more than three (3) would probably be unnecessary in most circumstances. You may also appoint persons to take the place of your principal Executor/s in the event that they are unable to act or continue to act for some reason.

In any case, your Will should be absolutely clear as to the disposition of all your real and personal property, jewellery, artworks, coins, antiques, and other collections. It should also address the question of any family member not included in your Will and the reasons for their exclusion.

See also: Inheritance Expert Susan Eisen Cautions Same-Sex Marriage Partners Be Careful in Choosing An Estate Executor 09 SEP 13

Can I prepare my own Will?

The requirements for writing and witnessing a valid Will are technical and the laws in most jurisdictions are very strict.

The best advice is to have it prepared professionally and most attorneys or solicitors will prepare your Will for relatively little cost.

You may even find certain Citizens Advice Bureaux and other community centres and organizations will prepare your Will without charge (subject to meeting their criteria for doing so).

Also be aware that most trustee companies, whilst they may offer to prepare your Will at no cost or very little cost, will seek to appoint themselves as trustee of your estate, thereby entitling them to deduct a significant percentage from your estate and your partner or other beneficiaries may receive much less than you intended.

Can my Will be challenged?

If you have any dependents (legal spouses, ex-spouses, children, long-term partner or ex-partner or carer) your Will may be open to challenge if appropriate provisions have not been made. Check the GayLawNet® - Laws section and your legal adviser with regard to such claims. If you have any biological family you should be sure to discuss this issue with your legal adviser.

Who pays my debts when I die?

If your estate is large enough to pay all your debts, payments will be attended to by your Executor/s when Probate has been granted (which is when the Will is proved to the Court having jurisdiction in regard to estates).

Are prepaid funeral arrangements worthwhile?

All a question of dollars. Some pre-paid funeral service providers suggest that by entering into such an arrangement your Estate is protected and/or your nearest and dearest will be spared the expense. However, in most jurisdictions your funeral costs come out of your Estate anyway and often your bank will pay funeral expenses from your account/s without undue delay, upon certain formalities being completed, so there is no need to enter into such arrangements. Why give the funeral service company the benefit of your money? Of course if you are "cash poor" perhaps such an arrangement has a cost benefit.

What if I have substantial debts?

If you have significant financial obligations (a mortgage for example) or liabilities that would impose a burden on or completely consume your Estate, your partner may be severely disadvantaged, (especially if your home has to be sold), and any gifts of money to friends may be impossible. It may be prudent to consider term life insurance and also incapacity or disability insurance, to cover these liabilities, at least until the mortgage is reduced to a relatively small amount.

The sum insured under a Term life insurance policy can be reduced annually as your debt reduces and the premiums are much more moderate than in the usual life insurance.

Insurers are sometimes reluctant to offer term insurance without first trying to sell you a life insurance policy (which policies often carry trailing commissions), but you should insist on being given details of such insurance.

When am I considered incapable?

If an accident or illness renders you unable to make proper decisions you may be considered incapable. It is important for you to consider appointing your partner or another trusted person or persons to act as your attorney or attorneys to avoid any difficulties arising from incapacity.

How do I appoint an attorney?

An Enduring Power of Attorney is the legal document appointing a person or persons to act on your behalf and is effective immediately from the date of the document or on a specified date or occasion right up to the date of your death, unless you revoke it.

In some jurisdictions you may also specify how and/or the order in which your property is to be dealt with.

What can my attorney do?

Your appointed attorney has the authority to make decisions and take any lawful action regarding your personal or financial affairs, including withdrawing money from your bank account and allocating funds to pay for your needs or even selling your property. So your attorney effectively "stands in your shoes".

You can also make limited General Power of Attorney for short-term requirements or a specified purpose or purposes. A General Power of Attorney ceases effect if you become incapable.

Can an attorney make medical decisions?

A separate Enduring Power of Attorney (Medical Treatment) is the legal document required to authorize a person to make decisions about your medical treatment and there are special requirements for the witnessing of this type of power of attorney. The person/s chosen need not be the same person/s you appoint to look after your personal and financial affairs.

There may also be provisions for making decisions with regard to the type of work you can do or your place of residence and some limited medical decisions and these documents may be described as an appointment of an Enduring Guardian.

Who should I appoint as an attorney?

You are placing a high degree of trust in the person you choose to appoint and there should be no doubt as to that person's integrity.

You may appoint two persons to act as your joint attorneys if this makes you feel more secure.

Of course your attorney/s should be made fully aware of your wishes regarding the conduct of your personal and financial affairs and if acting as your medical treatment attorney/s, your wishes in regard to such treatment.

In some instances they will be required to sign a formal consent to act as your attorney.

Who can prepare the Powers of Attorney?

There are often standard forms available from legal stationers that meet the requirements in a particular jurisdiction. Whilst these forms can be completed by you, for the usually small cost involved, it is preferable to have your legal adviser complete the documents and ensure that the strict signing formalities are adhered to.

See also: PARTNERS - PROTECTING YOURSELVES - POWER OF ATTORNEY