If you have a health care power of attorney, you will likely not need Tool # 7 unless you want to designate someone other than your health care agent to have authority to dispose of your remains.  However, the Appointment of Agent to Control Disposition of Remains must be coordinated with the health care power of attorney to avoid confusion or conflict.

The Disposition of Remains Act provides that a person may provide written directions via the following:

• a will;
• a prepaid funeral or burial contract;
• a power of attorney that meets the criteria of the Illinois Power of Attorney for Health Care;
• a cremation authorization that complies with the Illinois Crematory Regulation Act; or
• a written document that satisfies the provisions of Sections 10 and 15 of the Disposition of Remains Act and that is signed by the person and is notarized.  (that is, the “Appointment of Agent to Control Disposition of Remains.”)

The Act does not prioritize which of the above takes precedence, but the Appointment of Agent to Control Disposition of Remains does state that any prior appointment of a person to control disposition of remains is revoked.   755 ILCS 65/40(a).  It also provides that any disputes are to be resolved by a court.

As I’ve discussed many times -

• discuss;
• plan;  then -
• take action

to ensure that what you want and what you intend for yourself and your loved ones come to pass.

Why own as joint tenants rather than just leaving the house to your partner in your will?  Even if you die with a will, your relatives (“legal heirs”) may go to court to challenge the will.  This has happened all too often to LGBT people.  Ownership in joint tenancy means that the surviving joint tenant immediately becomes the owner of the home when you die.  This is called a Right of Survivorship.

The main advantage of joint tenancy is the automatic transfer of ownership when one of the joint tenants dies.  A home in joint tenancy does not have to go through the probate estate of the person who died.

A word of caution:  property held in joint tenancy can be affected by several types of taxes, including federal and state income taxes, estate taxes and gift taxes.  Tax laws change often.  Carefully consider tax laws when deciding how to title your home or other property.

As always, consult an attorney or financial planner.

For LGBT persons, a will is not optional.   Dying without a will guarantees that your property will be automatically distributed to your legal heirs, as defined by the law of Illinois, if you’re an Illinois resident, or your state.  The Illinois statute is here.

Who are legal heirs?

• They are your family of origin – children, parents, brothers and sisters.  If you have none, then your closest relatives are your legal heirs.
• A same-sex partner or spouse is not a legal heir (with the exception of a few states where the marriage, civil union or domestic partnership laws recognize the right of a same-sex partner to inherit.)
• No matter how long you’ve been with your partner, no matter what your relationship is with your family of origin – if you die without a will, your property will go to your legal heirs as defined by the law of the state in which you live.

A last will and testament can accomplish several important things, including:

• naming your partner or a close friend as guardian of your minor children;
• spelling out your burial wishes;
• clarifying your intention to provide for your same-sex partner or close friend or a charity;
• naming your partner as executor of your estate.

If you anticipate a will challenge or hostile family members, you need to take even greater precautions in drafting your will.

It is far less expensive, financially and emotionally, to plan now to make sure that your property goes to the people or charities you choose.  Remember, every state has different legal rules for creating a valid will.  Prepackaged forms are often incorrect or out-of-date or just don’t fit your situation.   Have an experienced, knowledgeable attorney who is familiar with the laws in your state and the issues faced by LGBT persons help you draft your will and life planning documents.