Wills and Trusts are an integral part of family law
Unfortunately, most people out there go “uncovered” in this area. For unmarried couples the lack of an estate plan can have significant impacts on the life of the survivor (and the couples’ children) far beyond what the couple may imagine.
To understand this you have to start with an understanding of the laws of intestacy
If you die without a Will there is a statute in every state that will automatically determine who gets your property – in other words, the state has a Will for you, even if you don’t.
In descending order of priority, your property will go to the following people (or their estates) if you do not have a Will:
- The spouse, or the spouse and child(ren) sharing equally.
- The children of the decedent.
- The parents of the decedent.
- Siblings of the decedent.
- Nieces and Nephews.
- Aunts and Uncles.
- Any other surviving relatives, determined by degrees of kinship using a chart.
- The State of Georgia, by way of escheat – i.e., when no legal heir can be found under the laws of intestacy, the state gets your stuff.
Domestic Partner is nowhere to be found on that list
The surviving partner of the modern family can end up owning their own home with a stranger if title was taken as Tenants in Common or if the Joint Tenancy was severed, unbeknownst to the survivor.
The survivor can end up without a home, if they are an off-title contributor, and with nothing in the way of reimbursement for the many years that they have contributed to the mortgage payments, repairs and upkeep.
At very least, the survivor could spend everything they have fighting with the family of the decedent, who may have disapproved of the relationship all along even if we’re not talking about significant assets, just to clarify what the survivor separately owned, and what was jointly owned by the survivor and the decedent because they commingled funds.
Trusts are another (and possibly better) option
One of the biggest benefits of a Trust is that it completely avoids the probate process. This means the transfer of assets in your estate will happen faster and with less cost, because the probate court almost never gets involved.
The second biggest benefit is that a Trust is usually so complex (as compared to a Will) that most people will not file challenges to the Trust that they would otherwise file against a Will – go back to the “disapproving family” and you’ll get the picture.
The third biggest benefit of a Trust is that it is a private document, unlike a Will. A Will is a public document because it has to go through the probate court system. A Trust is generally a private affair, never filed with the courts.
Trusts can be set up in a variety of ways to protect your modern family.
Because the marital tax exemption does not apply to domestic partners, you can design a Trust with only a Life Estate in the survivor, thus delaying the tax impact on your estate for the duration of the life of the survivor, rather than suffering that impact on the entire estate at the moment of your death.