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Wednesday, January 15, 2020

A transgender beneficiary now has a different gender and name from the will. Is that a problem?

Sometimes the logistics of wills and estates procedures may appear to be more complicated than they really are. For example, a reader recently asked me an excellent question about any problems that might arise because a beneficiary named in a will has changed gender and name from that shown in the will.

Here is the question:

"I'm transgender, so I might be listed under a different name in the will, referred to with the wrong pronouns, etc., would that change anything?"

The good news is that even though very little has changed fundamentally with wills in the last 100 years or so, the processes and procedures do get updated (slowly, I admit, but we get there). The change in gender and name will not prevent the beneficiary from inheriting the share given in the will. There is a simple way to deal with this reader's dilemma.

Let's say the beneficiary was named in the will as "my niece, Sara Smith." Since the will was made, Sara has become Sam Smith, a male. Everything about this gift seems different from what's in the will, but it's the same person. The important part of the gift is not the designation as a female. The important part is that the aunt wanted to give a gift to a specific person. The obligation of the executor of the will is to carry out the intentions of the testator (the person whose will it is). This is also the goal of any judges who may be involved in the case; the testator's intentions are paramount, so ways and means must be found to make those intentions happen.

The easy solution is for the executor to describe the change in the affidavit that accompanies the application to the court for probate. Every probate application contains such an affidavit; all the executor has to do is modify it to ensure that the beneficiary's situation is made clear. This is the same sort of procedure that is used when a woman who was single when the will was drawn up later marries and takes her husband's surname. Her name might be different from what shows in the will as well, but it is easily explained.

The affidavit I have mentioned is, like all affidavits, sworn under oath before it is given to the judge. Because it is sworn, its contents are evidence before the court.

If the will is not probated and the estate is administered without ever going in front of a judge, the changes can (and should) still be addressed. The most likely time and place to address this is at the end of the estate administration when the executor provides his or her written accounting to the beneficiaries. To explain to the rest of the beneficiaries why a gift to Sara was given to someone called Sam, the executor would include a sentence indicating the changed circumstances.

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