If you have legally changed your name, there can be confusion if you listed as a beneficiary under a different name.
However, the point of probate is to carry out your loved one’s wishes, so courts are often looking at the intent of the document, even if details do not match.
The best evidence to provide is proof of your name change in a legal document.
Problems can arise if your loved one’s will is not written clearly, or if family members challenge your right to an inheritance
People change their names all the time. People who have changed their name may wonder if this can affect their inheritance if a will in which they are named has not been updated to reflect their identity.
Courts understand this question and there are many legal procedures in place to accommodate common traditional situations, like a woman’s change in marital status. But what happens in probate court when you not only legally changed your name, but also your gender identity?
In most cases, it comes down to the wording in the will and whether it is easy to identify that you are the person the will writer was intending to name. The ultimate goal of probate law is to execute the person’s intentions.
If the intended beneficiaries are clearly designated, the law ensures that the inheritances will be distributed, even if the name in the will is outdated or the relationship was strained or complicated.
For example, estate attorneys usually use language to ensure any name changes will not cause significant confusion, including the relationship, the beneficiary’s last known address, and their date of birth.
With all this information, executors can be certain who the intended beneficiary is, even if the new name and gender have been legally changed.
To verify your identity as a beneficiary, the best evidence is proof of your name change in a legal document.
If you can’t obtain a copy of those documents, sworn affidavits from neutral parties are often sufficient evidence.
Many financial institutions administering transfer-on-death accounts or other types of benefits have their own procedures for proving you are the correct beneficiary when the name on file is not correct, so it’s important to follow the procedure of the specific institution.
Although this can feel uncomfortable or invasive, it is usually a straightforward administrative matter.
The most common problems arise when the wording of a will makes it unclear who the intended beneficiary is, and legal identity changes can lead to further confusion, especially if your new name is similar to other family members or is exceedingly common.
The executor of the will must be able to confirm your identity and can be asked to verify this under oath.
If the intended beneficiary is unclear, the court may rectify the will or, in some cases, rule the entire will invalid. In other cases, the executor might misunderstand who the will meant to name, and the estate can unintentionally be distributed incorrectly.
The most common problems arise when the wording of a will makes it unclear who the intended beneficiary is, and legal identity changes can lead to further confusion.
It can be more difficult legally and emotionally if the will writer was not supportive of your new identity and did not change the will as a result. Laws are evolving, but in many cases, states may examine the will’s intent.
Some courts may readily accept documentation of your gender identity change, while others may also require evidence that the will does not reflect the person’s intent.
That said, if the will does not clearly specify the person’s intent, it cannot be inferred because courts are generally bound to the words in the document for interpretation, so they generally rule for the beneficiary.
The opposition many trans and non-binary people may face comes from their own families who choose to challenge the beneficiary’s right to their inheritance.
They may want to support the person who didn’t approve of the new identity, they may not support the new identity, or there may be other family history at play.
Judges or governing bodies also may want to reflect the mores of the jurisdiction in which the case is ruled, or they may simply hold personal bias against people who identify as trans or non-binary.
If the trans person is not named in the will, a court may want to examine witnesses to resolve any possible inconsistencies with the intent.
If other beneficiaries, such as siblings, allege that the trans person was intentionally omitted from the will, either by not being named or by using what is known as the “dead name” (or the name you no longer hold), courts often have disinterested (neutral) witnesses provide sworn testimony.
The likelihood that the determination will find the omission intentional or unintentional varies by state.
Ideally, will writers update their wills whenever someone named in the will changes their name or when there are any other changes that may impact their estate.
But when estate documents “dead-name” or otherwise do not reflect a beneficiary’s current identity, this can cause tremendous pain by adding another layer of administrative burden at a minimum, and evoking past hurts during a time of grief and loss, even if it is unintentional.
If you are facing challenges in having your identity recognized, it can be helpful to consult a qualified attorney who specializes in LGBTQ issues in the will’s jurisdictional state. There are many legal strategies that may apply to your situation, and you may find relief with a supportive community that supports your rights—as a beneficiary and as a person ●
Probate is often a long and complex process, but it is also completely manageable if you stay organized and follow the instructions of the court. It’s definitely still a good idea to avoid the full probate process, if you can. We’ll walk you through whichever scenario applies to your loved one’s estate.