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  WINDY CITY TIMES

Avoiding a will contest: The ironclad will
Part 3++
by Roger McCaffrey
2013-04-03

This article shared 1487 times since Wed Apr 3, 2013
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Although I have advised that everyone, regardless of their age or net worth and even civil union status, should have a will, there are times when a will may not be enough. If one member of a LGBT couple has cancer, or another serious illness there is the possibility that their surviving lover could die within a short time of the first person's death. The end result could be that all the property of the couple would go to the family of the last lover who dies.

There are also times when someone, who as the result of their illness or disability, may need assistance with the management of their money and property during their lifetime. And it may be desirable to avoid probate altogether keeping hostile family members completely shut-out.

The way to solve these problems is to include the use of a durable power of attorney and living trust (in addition to having a will) in your estate plan. Basically, durable powers of attorney give your lover or trusted friend the authority to make business and financial decisions, deposit and withdraw money from your bank accounts and sign deeds and other documents while you are alive.

A living trust is a legal arrangement where a person executes a written trust document naming themselves as the trustee of their own trust and while alive they transfer their property to their trust so that the trust can hold legal title to all their assets. The document creating the trust allows the person making the trust (maker) to at any time dissolve the trust or take assets from the trust; always retaining complete control of their property.

The trust document can provide for the appointment of a co-trustee (surviving lover) who would only act upon the death or disability of the maker of the trust. Naming a person as co-trustee allows the maker of the trust to supervise the co-trustee, train him or her in the management of the assets and learn if the co-trustee will be able to manage the trust's assets after the maker's death.

When a living trust is combined with a durable power of attorney as a supplement to a will, there would be nothing to probate as all assets would be owned by the trust and distributed according to the trust without the need for probate and the possibility of a will challenge.


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