This is part two of a two part series on estate planning for the LGBT community. Last month, we covered laws pertaining to legal marriage and the rights LGBT’s are denied due to current laws as well as each element of estate planning. These elements are explained in detail below.
It is important to plan your estate carefully and know your rights according to the law: 

A will is the foundation of your estate planning. Within this document you express your wishes concerning the disposition of your estate. It is a powerful document that essentially allows you to speak from the grave. The important thing to know is if you should die without a will, called “intestate”, the state will determine what happens to your estate. This will create a nightmare for the loved ones you leave behind.

A trust, according to Black’s Law Dictionary, is a legal entity created by a grantor for the benefit of designated beneficiaries under the laws of the state and the valid trust instrument. In other words, you are creating a legal entity to hold your property and assets for the benefit of yourself and others. There are many advantages for establishing a trust, especially in a same sex relationship situation. With a trust you can avoid the time and cost of a probate. Even with a valid will your loved ones may very well be required to probate the will. This can be a very expensive and time consuming endeavor. Unlike a will, the terms of a living trust are deemed confidential which allows your wishes to remain under wraps if you wish. As a living trust is not made public, upon your death, your estate will be distributed in private. A will, on the hand, is public record and so all transactions will be public as well. Another benefit of a trust is the handling of out-of-state property you own upon your death. With a will, that property will have to go through probate in its own state; this is avoided with a living trust.

A trust is very difficult to challenge, which is not the case with a will. Too many times, in same sex relationships, a disapproving family member will come in and challenge the terms and/or execution of a will. Allegations of coercion, fraud, and/or undue duress are lodged against the surviving partner, causing the surviving partner to endure a lengthy and emotional litigation process.

A power of attorney is a document in which one person (the principal) appoints and authorizes another (the agent) to perform certain specified acts on behalf of the principal. The acts which could be performed include real estate transactions, monetary transactions, entering into contracts, and buying and selling other assets. The power of attorney is only effective during the life of the grantor. It can be rescinded at any time by the grantor and it is best this be done in writing. Unless there is language to the contrary the power conveyed in the document becomes effective immediately upon signing.

An Advanced Health Care Directive literally lists out what you want to have happen if you are incapacitated and end of life decisions must be made. This document will generally take the form of a living will and health care power of attorney. Living wills allow you to express in writing your wishes and the type of care you want when you are incapacitated and cannot speak for yourself. The health care power of attorney allows you to designate the person responsible for making health care decisions when you are no longer able to do so. Some individuals will execute a do-not-resuscitate order and a limitation on the use of life-support systems. As was discussed in the last column, for same-sex couples a hospital visitation form must be considered in putting into place protections for your family. This document will ensure that your partner will have access to you to be at your side should you end up in the hospital in an incapacitated state.

It is always advisable to seek the advice of an attorney to help you and your partner in determining how to plan your estate and to ensure all laws are complied with and none of your rights are compromised.

Dorothy Heim is an attorney with Diversified Legal Services in Oklahoma City. For more information, call (405) 601-2600 or visit www.ladylawyersokc.com