You could die today and people who are strangers to you or are hostile to your demands could have control over your estate. Even if you don’t have much, what little you do have could be thrown away instead of gifted to friends who might want a keepsake

I sat down with lawyer Gary Courtney of Courtney Aarbo to discuss why people should consider a will at any age. Usually wills are strongly suggested if the following applies:

• You have a home, savings, or more complex investments;

• There are debts which will have to be repaid after your death;

• You own art, antiques, or jewelry;

• You have children or special family needs; and/or

• You know your family might fight over your will.

Yet one important addition to this list is, "Are you gay, lesbian, bisexual or trans?"

Granted, without a will, there is a government solution. "If you have no will you’re under the default mechanism, which in Alberta is the Wills and Succession Act," Gary said. What this means is the government will appoint an executor to deal with the resolution of your estate. "This may or may not be the person you would have chosen to do that job. The default scheme for distributing one’s assets I haven’t really found it to be something that people want if they’re gay or lesbian."

The concern, as Gary puts it, is the government scheme is set up for the traditional family. There’s no scheme for non-traditional families. "Under the traditional family, if you have no will it would go first of all to a spouse or common-law (spouse)...if you don’t have those, it would go on to your children...if you don’t have a spouse, common-law partner, or children, it would go to your parents. If you don’t have parents, it would go to your brothers and sisters; it just keeps going on those lines."

Most LGBT folk for whom Gary has drawn up wills usually follow the first two steps of the above scheme; but for those falling outside this criteria, sometimes they will give the estate to their parents, siblings and family members. However, they will often outline their desires to have part of the estate parcelled off to friends who have become like family. So the default scheme may not work best in those cases.

Furthermore, when creating a will lawyers usually have a backup scenario in the event there is a disruption to the inheritance order. For example, if you and your spouse die, (and there are no children) who gets the estate? LGBT clients are almost always different than the traditional family – in this scenario, you may see some assets going to the family, and some to friends.

Another vital reason for a will is to have your final wishes clearly stated. "Usually when there’s fighting and arguing, that involves legal fees, which eats into your estate." If you die without a will clearly stating your wishes, people can dispute the government scheme of asset distribution. Any legal fees required to defend the government scheme will come from the deceased person’s estate. The end result may not change as to who gets what, but there may not be much left after lawyer’s fees. "Generally, the cost of doing litigation...will be paid out of your estate most of the time...that can ruin the future estate."

Beyond the money issue, without a will, you leave behind the potential for an additional emotional toll on the survivors. While the default scheme allows for the estate to go to your common-law partner, without a will someone can dispute whether this person was really your partner. For example, if you had a significant amount of money, and you’re estranged from your parents, and you die without a will – your parents could dispute the government distribution method with the argument that your common-law spouse was simply a roommate. Or it could be the case where someone who’s deeply closeted dies and her parents get a surprise when this stranger (to them) is laying claim to their daughter’s estate.

This is the hidden cost to the people you leave behind; not only do they have to mourn your loss, they now have to spend time fighting over the case and may therefore be emotionally vulnerable. "I have certainly seen people who start down that road of fighting...and they may have a claim, no doubt about it," but they are grieving and they just don’t want to fight, and they walk away. "As a lawyer you tell them that’s a poor legal choice, but on a human level...it’s understandable."

If a person has a will it’s clear; this is not to say wills can’t be challenged, but with a clear will you’re looking at one in a thousand wills being challenged. "Even that one in a thousand...chances of it being successful are 1 in a 100."

We’d like to think in the event of a death everyone behaves properly, but there’s a lot of emotions in play; while we might consider the family of a late friend being unfair, they might see it as a bunch of strangers trying to make off with their late child’s property. "We’re totally at the mercy of the person who’s looking after the estate; and by law that would probably be the parent (or brother or sister)."

In defence of family members who are doing this job, as mentioned above, they simply may not know you exist. "Sometimes gay and lesbian people keep their gay and lesbian friends separated from their family a little more so that straight people." So at the funeral the family meets a whole side of the church, several of whom may be making requests on the property of the deceased person. So it may not be anything sinister or bigoted; it may be just a simple matter of people left out of the loop.

With a will, you can also make special, specific requests. "A lot of people...will have a list of things they want to give to their friends or charities." Especially if there are no children involved, people may want to recognize friends or organizations who were present in their lives and helped them out when they were alive, or they may want to put aside trust funds for nieces and nephews to access when they’re adults. "If you don’t have a will there will be no specific items going to anybody unless the parents – who get everything under the default government scheme – decide to give you something."

As well, with wills and special requests, you can allow for IT support for your technical footprint. We’re not just talking about deleting your porn stash, we’re talking about shutting down your email accounts, shutting down your Facebook account and cleaning up your computer or Smartphone. Include in that backing up photos, music and documents. If you don’t have a will, it may take several weeks if not months before someone is appointed. Guaranteed your computer or Smartphone will not sit there collecting dust. Your Mom and Dad or sibling will deal with it and again, likely not in a way you would have wanted. You probably want someone who is technologically savvy to deal with your electronic persona, whether that be your executor or someone you specifically appoint to assist the executor.

At this point, if you’re thinking Well, with this information and one of those $30 will kits, why do I need a lawyer? Gary told me "...any lawyer would say it’s a very bad idea." It’s like needing an appendix operation and doing it yourself. The will kit may work, but it’s more likely to work if you’re a traditional family (husband, wife, kids). Gary has not yet seen a kit which covers the concerns unique to the LGBT community. Usually most kits don’t have backup plans beyond "spouse and children".

Additionally, will kits give a false sense of security – often there may be crucial steps which are missing which would then invalidate the will (Was it signed correctly? Did you proper have it properly witnessed?). There may be other financial concerns a kit wouldn’t cover that a lawyer does.

The argument for younger people just starting out who have next to nothing may be that a will isn’t important yet; however once you start amassing property or at the very least you start amassing items you’ve purchased (e.g. furniture, books, knick-knacks, clothes) without a will you’re leaving a huge mess for your family. In that case, the argument then goes along the lines of if you can afford rent, if you can afford a car payment, you can afford to draw up a will; especially since a will is not a costly document. A typical will is likely to cost around $500 – $600. For couples, it’s usually $800 (i.e. $400 each). Check with a lawyer to determine your specific needs – most will do a free 1/2 hour consult.

Next Month: Wills and Power of Attorney, Debts, Burial requests, Guardians for children & pets