Estate planning and creating a Will can often be difficult conversations for anyone to consider. Contemplating what needs to happen with your Estate once you have passed on can be confronting for many people, however it is an important conversation to have with your loved ones (and your lawyer) to ensure that your assets are distributed according to your wishes, and you leave a legacy you can be proud of.
There are several reasons that Wills and estate planning may not be seen as relevant or accessible for the LGBTQ+ community, including assumptions about complexity, concerns about judgment from the drafting lawyer, and an assumed focus on traditional family structures. We’re here to put your mind at ease and tell you why Wills are important, perhaps even more important, for the LGBTQ+ community.
Here are some assumptions that may cause LGBTQ+ individuals to avoid consulting a lawyer to discuss estate planning:
Estrangement from biological family:
Unfortunately, many LGBTQ+ individuals still face strained relationships with their biological families as a result of their identity. Individuals who choose to distance themselves from their biological family and prioritize their chosen family or close friends instead may assume that their chosen family will naturally inherit their assets or be involved in end-of-life decisions, without the need for a will.
If you die without a Will, you are said to have died intestate, and your estate will therefore be distributed according to the rules of intestacy. While chosen family and the importance of these relationships are well and truly understood within the LGBTQ+ community, the rules of intestacy rarely acknowledge these relationships, focusing instead on marital or biological connections when distributing your estate. If you have no spouse, registered partner, or children, your estate will be divided as follows:
- Parents
- Siblings
- Grandparents
- Aunts and uncles
Relevance for non-traditional families:
Some people hold the understandable belief that Wills are primarily designed for traditional family structures and may not be applicable to non-traditional or chosen families. Traditionally, Wills have been marketed as leaving everything to your partner, and if your partner predeceases you, then everything goes to your children. However, as outlined above, a Will is crucial for anyone who wants to ensure that their assets are distributed according to their wishes, regardless of their family structure or composition, and especially under circumstances where biological family members are being excluded.
Non-traditional family structures may require more complex financial arrangements, guardianship arrangements for minor children, or declarations outlining why a particular family member has been excluded from the Will. None of these wishes can be taken into account if you die without leaving a valid Will.
Wills are only for the elderly or the wealthy:
Another stereotype, both within and outside of the LGBTQ+ community, is that Wills are something to consider only in old age. Another is that Wills are only necessary for individuals with substantial wealth or valuable assets. Both assumptions are indicative of a misunderstanding regarding the purpose of Wills, and the process of administering your estate. Regarding age, younger individuals, while they may feel invincible, are not at a reduced risk of unexpected events or premature death. Life is unpredictable, and anyone, regardless of age, should have a will in place to ensure their wishes are followed if something were to happen.
The stereotype regarding wealth implies that those with fewer assets or limited financial means do not need to bother with creating a Will. However, a Will is essential for everyone, regardless of their financial situation, as it allows individuals to express their wishes regarding the distribution of their assets and the care of their dependents. Banks can be particularly challenging during the administration process and usually ask for a copy of the Will or a grant of representation to discuss closure of your accounts and distribution of the remaining funds.
Level of personal detail discussed:
Finally, discussing your Will and how you want your estate to be distributed can be an incredibly personal discussion. Understandably, this can lead to discomfort when there are concerns that the lawyer drafting your Will may not align with your personal values. It is important to do your research before engaging with a new lawyer. Consider looking for a firm’s social media, reading their Google reviews, or even use a local LGBTQ+ business directory which may be able to assist in recommending suitable lawyers or law firms.
Perhaps most importantly, consider reaching out to your network, including friends, colleagues, or members of advocacy organizations related to your values, for recommendations. They may have had positive experiences with lawyers who share your values and can provide valuable insights or referrals.
When you’re ready to take the plunge and arrange your Will, the Wills & Estates Team at Nevile & Co. would be delighted to assist. Contact us today at nevileco@nevile.com.au
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
