Disclaimer: This is legal talk, not legal advice. Laws vary by jurisdiction, and some of the information discussed on this page may not be applicable in your case. It is up to you to confirm any information herein by doing your own research.
Why we need wills
Trans + and genderqueer + people should take every available legal step to protect themselves. This includes official documents about what you want to happen if you get sick or die. If you are married or in a domestic partnership, and especially if you have dependent children, you MUST have a will.
Let me give an example. Eleven months after marrying trans woman J’Noel Ball, 85-year-old Marshall Gardiner died of a heart attack, leaving an estate worth $2.5 million and no will. Kansas law would usually split the estate when there’s no will, but instead, their decision not to get a will led to EVERY trans person in the state of Kansas to be legally declared their birth sex for purposes of marriage. It all could have been avoided had Gardiner bothered to get a good legally binding will. Now she is responsible for a precedent that hurt all trans people. She was outed at work, had to stand in front of the Kansas State Supreme Court and be legally declared a man, and was left with nothing. If that doesn’t convince you to get a will, I don’t know what would.
It does not matter if you are young, or if you don’t have much stuff, or if you think a will is creepy or a hassle, you need to take this step. If you are part of an unmarried couple, the surviving partner might not inherit anything unless you live in one of the few states that allows registered domestic partners to inherit like spouses.
- You must clearly identify yourself as the maker of the will, and that a will is being made; this is commonly called “publication” of the will, and is typically satisfied by the words “last will and testament” on the face of the document.
- You must declare that you revoke all previously-made wills and codicils. Otherwise, a subsequently-made will revokes earlier wills and codicils only to the extent that they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, that earlier will be considered completely revoked by implication.
- You must demonstrate that you havethe capacity to dispose of your property, and do so freely and willingly.
- You must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not getting anything in the will). In some jurisdictions, the spouse of a beneficiary is considered an interested witness.
- Your signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator’s intentions.
Handwritten, unwitnessed wills, called “holographic” wills, are legal in some US states. To be valid, a holographic will must be written and signed in the handwriting of the person making the will; in some states it must also be dated. Some states allow you to use a fill-in-the-blanks form if the rest of the will is handwritten and the will is properly dated and signed. Some states require a witness.
|New Jersey||yes||(Title 3B Ch 3 S 3|
|New York||**||EPTA S 3-2.2|
|North Dakota||yes||Probate D 2-503|
|South Carolina||no||62-2-303, 408, 502, 505|
|Texas||yes||Probate S 60|
|West Virginia||yes||Ch. 41, Art. 1, S. 3|
Steps to take:
- Make a will.
- Consider a trust.
- Make health care directives.
- Make a financial power of attorney.
- Protect your children’s property.
- File beneficiary forms.
- Consider life insurance.
- Understand estate taxes.
- Cover funeral expenses.
- Make final arrangements.
- Protect your business.
- Store your documents.
- Commercial US legal site. Has a section on wills and estate planning.
Making a Will UK (makingawill.org.uk)
- Commercial UK site on preparing a will.
- Their LegalForms service has a “wide selection of essential state-specific (and multi-state) legal forms that may be customized for the most common legal procedures. These forms are used by attorneys and law firms. Includes real estate contracts, wills, pre-marital agreements, bankruptcy, divorce, landlord tenant and many others. Many public libraries offer access if you a library card.