Helen Gowin, partner in our wills and probate team, offers some commentary on making a will for a LGBTQ+ client.
If you lose your partner whatever the nature of your relationship, it is hard enough to cope with the loss but there are some things you can both do in advance which may ease matters for the one left behind. Many clients, including those from the LGBTQ+ community, find it difficult to discuss their Will provisions with their partner but by making sure your Will is up-to-date is one of the key things you can do which may alleviate family difficulties and the stress of losing your partner.
If you die without a Will you are legally ‘intestate’ and there are rules which determine how the estate is to be distributed and who would be responsible to deal with your estate. If you are not married or are not in a civil partnership and if you have no children then your nearest blood relatives become entitled to deal with your affairs and inherit your estate. This may be contrary to your wishes particularly if you are estranged and highlights the importance of putting a Will in place. For some LGBTQ+ clients their families may not have accepted their status and they may no longer have close family ties with their blood relations.
When preparing your Will there are some things you may want to consider:
1. Choose your executor carefully
Your executor will be responsible for dealing with your financial affairs, will need to have access to your property and sort out your personal belongings and will need to act independently to ensure that your wishes are fulfilled. You will therefore want to choose someone you can trust to act in this role and who will also be able to deal with your digital assets such as photos or closing down any social media accounts you have.
2. Protect an unmarried partner
As with any cohabiting couple who are unmarried or are not in a civil partnership, if one of them dies without a Will the surviving partner will not have the automatic right to deal with the estate and may not inherit it. They may have to seek redress through the Court for financial provision which may be a prolonged and emotionally difficult process to deal with following a bereavement. A Will would ensure they are not disinherited and would avoid taking Court action. If you are unmarried or in a civil partnership, there may also be inheritance tax to pay on your estate and you may want to consider how to structure your financial affairs in the most tax-efficient manner.
3. Think about who you wish to leave personal items to
Your Will enables you to leave your personal effects to the beneficiary of your choice. If you have belongings which you wish to distribute privately you should consider a separate Letter of Wishes to place with your Will. A Will is a public document once a Grant of Probate is issued following your death. If you wish to leave sensitive or private information, consider setting out a Letter of Wishes to your Executors or Trustees so that they can distribute these effects without your wishes being in the public domain.
4. Consider provision for children
Be clear about leaving an inheritance to children and take advice if you are excluding someone who may expect to inherit. It may be the case that children in the family may not be biologically the children of the person who has died and although they may have been brought up as their child, they may not have an entitlement to inherit. Your Will should specify who you want to inherit your estate. If you have children and your partner does not have parental responsibility for them you should make a Will to appoint a guardian. How a child was conceived may affect who is entitled to look after them. You should take advice so it is clear how your Will affects their entitlement.
5. Prepare for challenges
As we have already mentioned, a LGBTQ+ client may be estranged from their family who may be disgruntled if your estate is left to a partner or friends. There are legal provisions which will determine whether a valid claim can be brought against your Will but you may want to leave a statement which sets out why your estate has been left in the manner you have chosen. This can assist the Court in determining the position if a challenge is brought.
6. Keep your Will under regular review
The law is evolving to adapt to different family structures so by keeping your Will updated you can ensure your wishes are carried out by those you wish to deal with your affairs, any inheritance tax is mitigated and you ease some of the pressure for those left behind whilst they are grieving.