Estate planning is for everyone. Regardless of your wealth, age, marital status, gender identity, or sexual orientation, it is crucial to have a plan in place to protect your money, property, and loved ones in the event of an accident, illness, or death.
For LGBTQ+ Americans, estate planning can be even more important. Despite same-sex marriages being legally recognized since 2015, couples composed of sexual and gender minorities still face estate planning challenges not encountered by other “traditional” same-sex couples. Issues such as unaccepting family members, child adoption by non biological parents, and LGBTQ+ couples living together unmarried underscore the need for proper estate planning documentation.
Without a plan, you and your family could be subject to your state’s default or intestate succession law, which may not take into account LGBTQ+ couples’ realities, families, and dynamics. And if your plan was created before 2015, you may need to revise it to ensure that it reflects the latest legal rights granted to married same-sex couples.
First Census Data on the LGBTQ+ Community
In the 2020 census, the US Census Bureau asked Americans about their gender identity and sexual orientation for the first time. Its findings finally shed some light on matters that include the number of same-sex couples living together and the current percentage of Americans who identify as LGBTQ+.
According to the Census Bureau, there are
The Census Bureau notes that same-sex couples are more likely than opposite-sex couples to be unmarried. Overall, same-sex married couples currently account for approximately 1 percent of US married-couple households. Census Bureau data also indicate that although the vast majority of American adults—more than 88 percent—identify as straight, 4.4 percent identify as bisexual and 3.3 percent identify as gay or lesbian.
Research by the Gay and Lesbian Alliance Against Defamation has found that younger people are significantly more likely to identify as LGBTQ than members of older generations. Among the US
population as a whole, 12 percent of adults identify as LGBTQ, but 20 percent of millennials identify as LGBTQ—nearly three times the number of baby boomers.
How Can I Create an Estate Plan?
The word estate can be misleading. While it may bring to mind a large, gated, and meticulously landscaped country home and grounds, legally speaking, an estate is simply all of the money and property a person owns.
Your estate is everything you have accumulated during your lifetime. It comprises not only your physical property, such as homes, vehicles, and collectibles, but also financial assets such as bank accounts, investments, and business interests. Your estate also includes any outstanding debts.
Your estate plan is a written declaration of how you want your money and property to be distributed when you pass away. An estate plan also details your wishes for what should happen if you become too ill or incapacitated to make personal decisions. With these points in mind, the following is a quick overview of basic estate planning documents that everyone should have:
Q: What is Probate?
A: Probate is designed to create a “final accounting” upon death. It is the legal process of “proving up” a Will, or verifying that a Will is valid, takes place in one of two instances. First, if a person dies leaving behind a Will, or second, if the deceased has died intestate, that is, has not left behind a Will or estate plan of any type or the Will cannot be found.
Q: Does the Probate process take a long time?
A: Depending on the complexity of the estate and the thoroughness with which accounting has been carried out before death, probate can either be a relatively simple task or a daunting one. Be aware that no matter the situation, probate may be a lengthy process often taking months or possibly years to play out, and one which may take a considerable amount of an executor’s time.
To summarize the process, probate can be broken into six basic steps:
Each of these steps involve legal documentation and validation, and more importantly, proper accounting each step of the way.
Q : What is Probate Court?
A: Probate begins and ends with the special Probate Court set up in each state to handle estate issues. (Sometimes known as the Orphan’s or Chancery Court in certain states.) All actions taken regarding the estate are accountable to this court, and must be noted and reported regularly. This court is staffed by special judges qualified to oversee estate resolution issues.
Q: Does the Trust Administration process take a long time?
A: To summarize the process, trust administration can be broken into five basic steps:
Although the trust administration process seems relatively straightforward, there are several reasons it can sometimes be drawn out over several months or even years. The first step, the inventory of assets, must be completed before the trust administration can begin, and this can be difficult to complete depending upon the prior organization and the size and complexity of the decedent’s assets. Next, the 706 estate tax return must be filed within 9 months, or 15 months if an extension is filed. Often, it is prudent to wait until the last minute to file this form. If the spouse of the decedent is in failing health and may pass away before the deadline, then both 706 forms can be used to maximize tax advantages to the estate. The final step, asset distribution, cannot take place until the 706 has been filed, and even then should not take place until the “Closing Letter” is received from the IRS certifying acceptance of the 706 return. This closing letter will take a minimum of 6 to 8 months, and as long as 3 years, to arrive after the 706 is filed. In addition, there may be a state estate or inheritance tax return required, even if a federal return is not required.
Q: I thought that a living trust avoids probate and attorney fees. Why do I have to pay more fees?
A: While having a living trust can significantly reduce costs compared to probate, there is still a considerable amount of work to be done in properly administering even a simple living trust. The services of an attorney are required, and that person or firm should be compensated fairly for their services. It is important to remember that the fees allowed for trust administration are usually much lower than those for probate, and there is generally less work involved, as there is less involvement of the courts and state bureaucracy.
Q: Can I pick and choose what assets go into the “B” trust?
A: The answer depends upon the language of the trust document. Certain trusts include “pick and choose” language that allows trustees to selectively place assets into the “B” trust.
Q: How do I transfer the car(s) into my name?A: If you are a relative of the deceased, this is simple in most states. To transfer the title of vehicles owned by the deceased, simply take the death certificate to the DMV, and perform the transfer, paying whatever fees they require. If not a relative, bringing along the will and or any trust documents indicating your status should be sufficient.
Q: What do I do about Social Security?
A: Social Security will continue to send out benefit checks until they are notified of an individual’s death. The executor/spouse/trustee should contact the local Social Security Administration office and notify them of the death, or if a benefit check is received, send it back with a letter notifying them. This is important. If checks continue to be deposited, the recipient can incur liability later when Social Security learns of the recipient’s death.
When you utilize a living trust to plan your final wishes the distributions of your assets will take place outside the probate process. This process is often avoided because of three major factors: it is time-consuming, it can be expensive, and it is an open proceeding that provides a forum for those who may want to challenge your will.
A revocable living trust gives you the power to control the funds while you are still alive, and because the trust is indeed revocable you can make changes or dissolve it entirely if you want to at any time. Plus, you could cover all your bases by including an incapacity component that names a disability trustee who would manage your affairs in the event of your incapacity.
Executing the trust agreement is one thing, but you also must consider the hands-on tasks involved in on-going trust administration. We have put together a valuable free report that explains trust administration in detail. We urge you to arrange for the download information to be sent you right now. To obtain this report simply click this link and complete the form that you will see on the right of the page:
Nevada Trust Administration
After you read the report we invite you to contact us for a free consultation. You can do so by clicking this link: Reno Estate Planning Consultation
Part of the estate planning process involves the execution of documents that direct the transfer of assets to your heirs after you pass away. Most people will use either a will or a trust to accomplish this.
Making sure that you have legally binding documents in place is absolutely essential. However, when you are working with an estate planning lawyer to draw up these documents you should consider the matter of postmortem planning as well.
A document can't get up off the desk and take action. The will or the trust is going to provide instructions, but you must also arrange for human beings to make your wishes become a reality after you pass away.
Individuals who express their wishes through the execution of a will must understand the fact that the estate will be passing through the probate process. Your family may not have any any idea how probate works. At least the executor that you chose should have some understanding of the probate process.
A wise course of action may be to make arrangements for the attorney who assists you as you are drawing up your will to act as the probate attorney after your death.
The same thing is true of trust administration. You should instruct your trustee to speak with your attorney about administering the trust upon your incapcity or death. This will help ensure that your fiduciaries will have the legal support that they need to carry out your estate plans for the benefit of your loved ones.