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Frequently Asked Questions

 

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Below are a list of common Questions and Concerns that are often asked before, during and after the document preparation process.  Click on a question to read the answer. If you have a question not addressed below, please feel free to send an email with your question or request a copy of Rainbow Law's Estate Planning Workbook.

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General Estate Planning Questions:

 

     
 

What is an 'estate?'
The very word 'estate' conjures up images of mansions, limos, etc.  In reality, most people have an estate -- be it large or small. Your 'Estate' is just the stuff you own when you die! While you are alive, you sell your stuff at a yard sale.  When you die, the same stuff is sold at an Estate sale! 

 
 

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Why do I need an estate plan?
Because you and your partner have no legal relationship.  If you do not put your wishes in writing your biological family will automatically inherit your property and assets upon your death.  Most of us spend a considerable amount of time and energy in our lives accumulating property and other assets. If we want to ensure that our partner and/or other loved ones will have a right to inherit the fruits of our labor, we must take the time to create a plan and put our wishes in writing. If you do not plan your estate, you lose the opportunity to protect your partner and your family from an impersonal, complex governmental process that is a burden and a nightmare -- especially in today's hostile and homophobic society.

 
 

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What will happen if I do not have an estate plan?
Lucky for you, your state government has designed an estate plan just in case you do not make a plan for yourself.  BUT, you probably won't like it. The government's estate plan is called "Intestate Succession" and if you do not make an estate plan then the state will interfere in the distribution of your estate. Because your partner -- and possibly even your children -- are not considered by law to be related to you, the government's estate plan completely overlooks them and instead distributes your estate to your legal and biological relatives.

The only way to overcome this is to put your wishes in writing by creating estate planning documents.

If you do not create your own estate plan your estate may also be subject to "Probate" -- an expensive and time consuming process that is described in detail below.  

 
 

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What is "Probate?"
Probate is a legal proceeding whereby a judge determines whether a Will is valid and how an estate will be distributed.  During probate, your assets are frozen until certain legal documents are filed and approval received from a judge that will release your assets and accounts (probably to a relative) in order to pay your bills and debts. A formal accounting of the value and extent of your assets and property will be done.  All of this is public information accessible by way of legal notices published in the local newspaper and made part of the public record in your county court house. 

 
 

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What's the difference between a Last Will and Testament and a Living Revocable Trust?

A Last Will and Testament is a legal document that describes how you want your assets distributed upon your death. Even though you sign it while you are living, it does not take effect until you die.  Therefore, when the validity of your Will is called into question, the one person who can attest to its accuracy -- you -- will not be around to defend your wishes. 

The distribution of a Will is controlled by a legal process called "Probate" (see above), which is Latin for "prove the will." Upon your death, your Will becomes a public document available for inspection by all who wish to read it.  And, once your Will enters the probate process, it's no longer controlled by your partner or someone else you trust, but by the court and probate attorneys. 

Also, a Will is more vulnerable to a successful legal challenge by disgruntled relatives.  Again, if someone contests your Will, you will not be alive to defend your partner's rights to inherit your property and administer your estate. 

All of the above can result in unnecessary, time-consuming, expensive, and emotional trauma for your loved ones -- in a time of grief and vulnerability.

A Living Revocable Trust avoids probate because your property is owned by your Trust, so technically there's nothing for the probate courts to administer. Whomever you name as your "successor trustee" gains immediate control of your assets and distributes them exactly according to your instructions.

Again, a crucial difference between a Trust and Will is that a Trust takes effect the minute you sign it and thus the powers that you give to your partner as Successor Trustee also take effect while you are living.  A Trust is not subject to probate and it is private.  Unlike a Will, a the terms of your Trust are not made part of the public record and are known only to you, your Successor Trustee and beneficiaries. 

A Living Trust is revocable and thus the terms can be changed -- or the entire trust cancelled -- at any time during your life.  A Trust can help you preserve and increase your estate while you're alive, and offers protection should you become mentally disabled.

 
 

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What if I become incapacitated during my lifetime? Unfortunately, if you become incapacitated without signing a Living Trust and/or Durable and Medical Powers of Attorney (DPOA), you may find yourself in a guardianship proceeding. If you become mentally disabled before you die, a court may be asked to appoint someone to take control of your assets and personal affairs. Since your partner is not considered a legal relative, unless you appoint your partner now, he or she will have no right to petition a court to act on your behalf.   Instead, the court will appoint a legal family member or someone else -- perhaps a stranger -- to manage your affairs.

 
 

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If I set up a Living Trust, can I be my own Trustee?

YES. In fact, most Living Trusts have the people who created them acting as their own trustees. And you will have absolute and complete control over all of the assets in your trust. In the event of a mentally disabling condition, your hand-picked successor trustee assumes control over your affairs, not someone appointed by a court.

 
 

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Will a Living Trust avoid income taxes?

NO. The purpose of creating a Living Trust is to protect your partner's rights to administer your estate and inherit your property.  A Trust will also protect your estate from probate.  It's not a vehicle for reducing income taxes. In fact, if you're the trustee of your Living Trust, you will file your income tax returns exactly as you filed them before the trust existed. There are no new returns to file and no new liabilities are created.

 
 

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Will my Successor Trustee be personally liable for my debts?

NO. Your Successor Trustee is granted powers and authority to manage your financial affairs but your assets and debts are not counted as belonging to your Successor Trustee.  Therefore your Successor Trustee is not personally liable to pay your debts or taxes out of his or her own pocket. 

 
 

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Should I transfer my house into my Living Trust?

YES. In fact, unless it is owned jointly with rights of survivorship (see more below) all real estate should be transferred into your Living Trust. Otherwise, upon your death, depending upon how you hold title, there will be a probate proceeding in every state in which you own real property. When your real property is owned by your Living Trust, there is no probate anywhere.

 
 

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Is a Living Revocable Trust legal? 

YES. The Living Trust has been authorized by the law for centuries. It is in the best interest of the state to allow you to make a plan to deal with your assets rather than use the probate process that tends to clog up the legal system. A Living Trust is an effective way to settle your estate while avoiding probate so that your estate is settled exactly according to your wishes.

 
 

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Isn't a Living Trust only for the rich?

NO. A Living Trust can help anyone protect his or her family from unnecessary probate fees, attorney's fees and court costs. In fact, because gay and lesbian relationships are not recognized by law, a Living Trust offers a tried and true method to grant powers and rights to your partner that would otherwise be unavailable. Because Trusts are a legally recognized alternative to Wills and Intestate Succession, they offer substantial benefits and protections for same-sex families.

 
 

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Do I transfer all of my property into my Trust?

Not necessarily.  Property and accounts that you own jointly with rights of survivorship do not get transferred into your Trust.  Likewise, any account or policy that lets you name a beneficiary to inherit the proceeds upon your death do not get transferred into your Trust.  Property owned jointly with rights of survivorship and accounts and policies that have a named beneficiary pass to the joint owner and/or beneficiary automatically upon your death and outside of probate. Therefore, these accounts and policies do not need to be transferred into your Trust.

 
 

 

 
 

Questions About Rainbow Law:

 
 

 

 
 

How does Rainbow Law create your documents?

After you submit your information on our online, secure questionnaire, we create the first drafts of you documents and send them to you within 24 hours after receiving your order.  Next, we send the drafts to you as attachments to an email to review.  At this point you are given the opportunity to review the documents and alert us to errors, provide additional information, ask questions, etc. We will make whatever changes are needed and then send revised drafts for you to review again.  This process is repeated until you are satisfied at which point we will print and mail your package with detailed instructions.

 
 

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Why use Rainbow Law to create your documents?

Rainbow Law provides high quality documents at an affordable price as a service to the LGBTQ community because we believe every lesbian and gay family deserves to have the vital legal protections these documents provide. 

 
 

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Are Rainbow Law's Documents legal in my State?

Yes.  In fact, every state's law allows its citizens to create their own documents, without or without a lawyer.  The only requirements are that your documents must clearly state your intentions, your wishes must be easy to understand and the documents must be signed and witnessed properly. Of course, because our relationships are not legally recognized, our documents should also include specific language that will protect our partner and children.  When you order documents from Rainbow Law, we create documents that are based on your State's laws.  Our documents are not blank forms.  These are carefully drafted legal documents that will reflect your wishes, protect your rights and comply with the laws of your state.

 
 

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Is Rainbow Law a law office?

No.  We do not have a law practice.  Carrie has a law degree and Elisia is a paralegal.  We are full-time civil rights activists who use our skills and experience to create legal protections for the LGBTQ community throughout the country and not just in one city or state.

 
 

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After I create my documents will I need to have them reviewed by a lawyer?

No.  Unless you want to have a lawyer review them for your own peace of mind, it is not necessary.

 
 

 

 
 

Questions About Legal Documents:

 
 

 

 
 

What is a Living Revocable Trust?

The centerpiece of your Estate Plan is the Living Revocable Trust. A Trust is a contract  between the Grantor (the person who creates the Trust who, incidentally, is you) and the Trustee (the person who will manage the Trust assets, who is also you!).  In the Trust contract the Grantor (you) gives all of his or her assets to the Trustee (also you).  Obviously, you never really give yourself anything.  The concept of giving yourself stuff you already own is called a “legal fiction.”  A Trust is “living” because it takes effect while you are alive.  It is “revocable” because you can amend (change) or revoke (cancel) your Trust at any time during your life. 

 
 

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What is a Last Will and Testament?

A Last Will and Testament is similar to a Trust in that it is used to pass property to beneficiaries of your estate.  Since your estate plan will include a Living Revocable Trust, your Last Will should contain a “pour-over” clause directing that all of your assets be given to the Trustee of your Trust.  The pour-over clause will help to keep your estate out of Probate because any asset or property that you did not "put-into" your Trust prior to your death will "pour-into" your Trust estate after your death.    A Last Will and Testament is a useful document for stating your wishes as to the disposition of your remains (whether you want to be buried or cremated), and for appointing a guardian for your minor children. 

 
 

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What is a Durable Power of Attorney (DPOA)?

A Durable Power of Attorney gives you the right to name someone you trust to manage your affairs (pay your bills, write checks on your account, buy and sell property, make investments, etc.) while you are in a state of incapacity – whether or not you will recover.  You decide whether you want this power to become effective when you sign the document or if you would rather have it take effect when you become disabled.  Your DPOA ceases to be effective upon your death.

 
 

 

 
 

What is a Power of Attorney for Health Care decisions?

This document (known by other names depending on the state where you live) lets you appoint an agent to make health care decisions for you if you become incapacitated and unable to speak for yourself.  You may include language in this document that directs medical professionals to give your partner the right to visit you in any hospital or health care facility. 

 
 

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What is a Living Will?

A Living Will gives you the right to make important decisions regarding your health care and your body. For example, you can state what medical treatment you want, if any, in the event that you succumb to an illness or injury with no hope of recovery.  You can decide for yourself whether you want to be placed on life support or if you want artificial nourishment (tube feeding), etc.

 
 

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What is a Living Together Agreement (also known as a Partnership Agreement)?

Heterosexual marriage is essentially a contract in which partners agree to a predefined set of privileges and obligations. While same-sex partners cannot legally marry, we can write our own contracts, selecting the terms and conditions we prefer, within the limits prescribed by law.

 
 

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What is a Parenting Agreement?

This agreement can spell out the rights and responsibilities of each parent and require their enforcement through private mediation.

 
 

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What is a Nomination of Guardian?

If you are the custodial parent, you can add language to your will nominating your partner as the child’s guardian in the event of your death.

 
 

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What is an Authorization to Consent to Medical Treatment of a Minor Child?

By signing this form, the custodial parent can authorize her partner to consent to medical procedures for their child.

 
 

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What is a Donor Insemination Agreement?

A written agreement between a sperm donor and a prospective mother which clarifies the arrangements to which they are agreeing. In particular the agreement might record the arrangements you have agreed to about the involvement, if any, the donor is to have in the life of any child conceived by use of their sperm and your respective rights and responsibilities in relation to that child.

 
 

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For more detailed information, please request a Rainbow Law Estate Planning Workbook. 

 
     
 

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