For some couples marriage is not in the cards, even if they intend to be in a committed relationship. What then happens to your partner if you die? Certainly, end-of-life considerations need some attention.
One way to handle this is to have an experienced attorney create a variety of documents that will dictate what happens if one of them either becomes incapacitated or passes away.
In other words, you need an estate plan.
THE BASICS
Your “estate” simply refers to everything you owned when you pass — i.e., your financial assets, real estate holdings and your personal possessions.
Experts say that creating a plan for what happens to your estate — regardless of how small or large it may be — is critical for unmarried partners who want to leave their assets to the partner they committed to.
For married couples without an estate plan, it is still a mess when one spouse dies. Generally speaking the surviving spouse would have to usher the estate through Probate. However, the estate would generally default to the surviving spouse.
However, for unmarried couples, the unmarried partner is generally left out in the cold.
If you die without any estate planning documents, such as a simple will or a trust, the courts decide who gets what. That process is public and can be very expensive with statutory fees going to attorneys, executors, and the courts.
That said, a will alone won’t necessarily cover all your bases.
RETIREMENT ACCOUNTS
If you want to make sure your retirement accounts go to your partner, you must be sure to name them as a beneficiary, otherwise the account balance will go to whoever is listed.
Even if you have a will that states otherwise, whoever is listed as the beneficiaries on those accounts will get the money. Same goes for insurance policies and annuities.
If no beneficiary is listed, where the money goes depends partly on the retirement plan agreement and on state law. Typically, though, those retirement assets would end up being included in your assets that are subject to probate.
REAL ESTATE
Regardless of your arrangement with your partner, whoever’s name is on the deed owns the home.
Even if both your names are on the deed, generally the deceased partners half would still be subject to probate. The deceased partner could transfer their ownership to the surviving partner; however, this again would still require the estate to go through probate.
FORM A TRUST
If you own real property in California, it is highly likely the value of your estate would be subject to probate. Remember, the probate courts look at the fair market value of the home at time of death, not the purchase price.
Forming a Trust is one way to ensure the property stays out of probate, along with the majority if not all of your estate, if done correctly.
Forming a trust up front is an initial investment, however compared to the amounts the estate would lose in probate fees, it is an easy decision.
DECISION MAKING
Your unmarried partner generally has no legal say in your medical treatment if you become incapacitated, i.e. cannot make those choices for yourself.
If you want your partner to make those decisions for you, you can have an attorney create a health care durable power of attorney. This highly important document will allow them to make those choices for you, and they can be written with your instructions to be followed – not theirs, the doctors, or your family for instance.
You should also create a living will, which states your preferences should you end up on life support or suffer from a terminal condition. Additionally, you might want to name create a durable power of attorney for your finances. This would allow your partner control of your money, including accessing your accounts to pay bills, mortgage, and other affairs as necessary.
Dennaoui Law is able to help you through this process as well as prepare any and all of these documents at a moments notice.
We are able to communicate with you and prepare Trusts and all your estate planning documents 100% electronically, so that you can be protected and to promote social distancing.
Feel free to call Dennaoui Law Firm with any questions or contact me via email: frank@dennlaw.co.
Best,
Frank Dennaoui, Esq.