PROTECT YOUR LOVER BY MAKING YOUR WILL

LEGALLY SPEAKING - PROTECT YOUR LOVER BY MAKING YOUR WILL
by Roger V. McCaffrey-Boss
Copyright by Gay Chicago Magazine and Roger V. McCaffrey-Boss
February 4-10, 2010
http://www.gaychicagomagazine.com/advice/legallyspeaking.shtml


PROTECT YOUR LOVER BY MAKING YOUR WILL

Q: My lover passed away last month from cancer. We were together for over 30 years, unfortunately, neither of us had a will. We were always going to go to the lawyer but never could find the time. The problem is that my partner’s sisters now tell me that they own the house and everything else my partner owned. And they want to come into our house and take all the furniture. What are my legal rights?
A: Unfortunately, because you and your partner never made wills you will have an uphill legal battle to acquire the property that was in your partner’s name alone, if at all. And you may have to produce receipts and documentation to prove that the furniture and household items in the house were either bought jointly or by you alone.

The law states that no one is ever without an estate plan, even if they don’t have a will. From the moment of birth, every individual has an estate plan that was written by the state in which he or she resides. State intestacy statutes provide an estate plan for everyone who does not make a will. Illinois has established a line of distribution for the property of some one who dies without a will.

Illinois Intestacy Will

I, an Illinois Resident, make this will.

FIRST. All claims against my estate shall be paid in full.

SECOND. If I am married with no children, my entire estate to my wife. If I have a spouse and at least one child, one-half to my spouse and one-half to all of my children. If I have no spouse, then all to my children in equal shares. If I do not have a spouse or children, then I give my entire estate to my parents, brothers and sisters in equal shares, allowing my surviving parent to have two shares if one parent is dead, and to each descendant of a deceased brother or sister of mine such share shall be distributed equally to the descendants. If I have no spouse, child, parent, sister, brother or descendant of a brother or sister, then my estate shall go to my grandparents or their descendants or if none exist then to my great grandparents and their descendants, of whom I may not know or have ever met. If no relative can be found then to the State of Illinois and to the County in which I resided.

THIRD. I leave nothing to my partner, lover, life companion or any friends or charity.

FOURTH. I appoint no one as executor of this will and prefer that a family member be appointed by the Probate Court to act as executor.

It has been my experience that the subjects of death, disability and planning for those possibilities is very often put off. It’s the last subject that lovers want to think about. Each member of an LGBT couple under their will can leave everything they own to the other and appoint their lover to be the executor of their estate. That way each person would keep full ownership and control of whatever they owned while alive and yet know that upon their death their lover would be adequately protected.

Once wills are executed then you can further consult with your attorney and accountant (or financial planners) and take advantage of all the alternatives available for estate planning and avoiding probate.

Roger McCaffrey-Boss is a graduate of Hamline University School of Law, St. Paul, Minnesota, and is a member of the Chicago Bar Association. You can e-mail him at RVMLAWYER@aol.com . He suggests that you consult your own lawyer for any specific questions regarding the issues raised in this column.
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