Aside from the physical and emotional challenges that transitioning can bring on itself, there are a host of other issues that can arise when it comes to drafting wills.
Key to avoiding any unintended disputes or confusion occurring at what can often be a difficult and turbulent time, it is important for trans people and their family members to carefully consider the implications of a legal change in gender for estate planning purposes. Despite conversations about what will happen to your family’s estate often being a difficult subject to broach, discussing the knock-on effects that transitioning may post for the will drafting process is also important to ensure that each person referenced in a will is identified according to their wishes.
Estate planning is essential regardless of an individual’s financial position. Planning who will inherit your estate and how they inherit it ensures they are safeguarded and the process of administering an estate is far more straightforward. However, fear of stigmatisation within the trans community and other factors, such as family conflicts, may cause people to put the process on hold or put it off entirely. If existing wills are not updated to clearly reflect new gender identities, disputes can occur down the line, feelings may be hurt and deadnaming can often trigger extreme emotional responses in those that have transition adding additional stress at an already difficult time.
The Gender Recognition Act 2004 came into force on 4 April 2005. According to the law an individual’s new affirmed gender cannot be legally recognised until they’ve secured a Gender Recognition Certificate (GRC). It’s important to bear in mind that GRCs are not retrospective in effect and as such wills drafted prior to this date will be construed taking into account the beneficiary’s assigned gender i.e. the sex they were assigned at birth. As such, the fact that beneficiary’s gender has since changed will be disregarded.
By way of an example, a will drafted in May 2005, may refer to all of the testator’s “daughters” being entitled to 80 per cent of their estate. If one of the daughters subsequently transitions to become a trans man, they would not be recognised as a “daughter” for the purposes of distributing the estate. It is therefore important for trans people to have frank discussions with family members from whom they would expect to inherit at some point in the future, to ensure changes are made to existing wills.
Obtaining a GRC is a notoriously long and difficult process, for this reason it isn’t advisable to put off any estate planning until the process is complete.
It’s important not to put off until tomorrow what can be done today. The process should start as early as possible. Even before a GRC has been obtained, careful drafting of wills and other important documents can ensure they remain valid despite a beneficiary living as the opposite gender and being identified by a different name.
Family members of those who are thinking of transitioning, or have already done so, should also consider re-drafting their own wills to incorporate gender-neutral terms such as “child”, as opposed to “son” and “daughter” for example or refer to their beneficiaries by name. This can help to ensure that all children are able to benefit, regardless of their gender.
Sadly, a fear of judgement can create a psychological barrier which discourages many in the trans community and their families from seeking expert estate planning advice. It’s important to find an adviser who they feel comfortable with, we can help. By securing the right expert advice, those thinking about transitioning can finally continue to live their truth, safe in the knowledge that they have done what they can to protect their family and friends.
If you would like to talk about any of the matters above, please contact Matt Parr.