A will is a formal document that directs how a person’s (the “testator”) assets will be distributed after death. Probate is the legal process of administering a will in court.
A will appoints someone to gather and distribute the assets (the “personal representative”), defines who will receive the assets (the “beneficiaries”), and directs how the process will proceed. The process begins after the will has been “admitted to probate” and is supervised by the Probate Court.
Many people ask, “do I need a will?” For LGBT people, the answer is almost always, “yes.” If you are married and do not have a will, your spouse has the first right to serve as Personal Representative of your estate – if he or she is able to serve. Your spouse can make final burial or cremation arrangements and will inherit at least some of your assets (half if you also have children who are not the children of your spouse; all of your assets if you have no children). If your spouse is unable to fulfill these roles, your blood family will step in.
If you are not married and die without a will, your Personal Representative will be the closest blood family member who is willing to serve (a parent, a child, a sibling). It does not matter whether they knew you, were close to you, or even like you. Without a will, that person will decide how your burial or cremation will be handled. Without a will, your assets will go to your closest blood relatives, whether they need it or not. Unless your partner holds title to your home, car, bank accounts, investments, etc., he or she will be excluded from them. Your blood family can take all your personal possessions (clothing, jewelry, furniture, photographs, pets, all of it) and some or all of your partner’s possessions unless he or she can prove ownership. If they wish, your blood family can exclude your partner, friends, and community from your funeral or memorial service.
You may say, “my family would not do that.” If you have been a lawyer for 30 years, like me, you would not say it. You would assume this is how it will go because it often goes this way. People behave in unpredictable ways when they are under stress, upset, and confused. Most people are not prepared to face a loved one’s death, much less manage the myriad of details that arise. Preparing a will that describes how your funeral or memorial should be conducted, who will serve as your Personal Representative, and how your assets will be distributed is an act of love and generosity. It is a gift you give to the people you leave behind so that they can celebrate the contribution you made and be at peace with your passing.
For more information about the differences between wills and trusts, what it means to “avoid probate,” and other estate concerns, please see Frequently Asked Questions and download the FREE Planning Guide available on this website.