Face it. We transpeople get pretty jumpy whenever anyone of us talk about death or dying. It’s easy to presume that whenever one of us talks about the subject means that person must be suicidal. One of the reasons we do is because any of us who has read about the statistics in the National Transgender Discrimination Survey and other studies knows we have a rate of suicide attempts far higher than the rest of the population. Because of this, volunteers have set up a Trans Lifeline to help any transperson on the brink. If you happen to be there now, please save this article for a happier day and call this number if you’re in the United States: (877) 565-8860, or if you’re in Canada: (877) 330-6366.1
That said, there is a proper course of action to prepare for what’s inevitable that should not be avoided if one can act upon them. One who contemplates suicide seeks to relieve physical or psychological pain. Proper action has a different purpose: to protect loved ones, dispensation of estates consistent with the purposes of conscience, and to assure proper respect of that for which you worked so hard to achieve: your identity.
Too often these issues get ignored. Friends and close family members often refuse to permit another to even speak of them, presuming that any mention of death means suicidal tendencies or negative thinking. Though well intentioned, people like that do a serious disservice. We all need to make whatever preparations we can as a matter of moral duty.
Many younger transgender people venture out in the world each year, some having been expelled from their homes. Diligent transpeople will make a life for themselves sooner or later. Some thrive very well. Whatever a transperson gains needs to be protected. They may come to own estates that at some time will pass on to another.
Details regarding preparations for end of life vary from state to state to province or country and this article makes no attempt to give legal advice that may or may not hold true in any particular jurisdiction or case. Do consult an attorney to review what you propose or write if you can. Granted, attorneys can be expensive. But they’re worth the thoroughness.
Here are some tips concerning where you can prudently and realistically direct preparations for the time of death, whenever the inevitable may happen to occur, some of which may be best done with the help of an attorney but most of which you could do on your own if you take time to study the procedures as they may exist in your state or other jurisdiction:
Respect After Death
On September 26, 2014 the State of California chaptered legislation to protect transpeople in a way that most states haven’t even discussed: The Respect After Death Act (AB 1577).2 This legislation resulted from an outrage that took place in the Bay Area in which Christopher Lee, a transman had died. The family of the deceased had opposed his transition and imposed his female birth name and identity upon him, made up his body as a female, and presented him that way in an open casket church funeral. The family literally denied that their relative had ever been a transperson, using the funeral as an act of erasure.3
This open act of desecration, sadly, has been repeated everywhere by iron fisted and fanatical relatives. California’s legislation made it mandatory that all funeral homes and morticians prepare the dead consistent with their gender identity including the legal names the deceased had secured through the Superior Court. Today hostile relatives cannot perform an act of erasure upon a transperson’s identity at the time of death after that transperson had already legally secured legal name and sex consistent with gender identity. A funeral director may not reverse what has already been legally established in the courts.
Of course, that’s California and another jurisdiction probably won’t have this provision. A prudent course may include such provisions through Specific Power of Attorney consistent with that portion of the Living Will and secure advance assistance from a party including those you designate for internment to oversee the disposition of remains and most effectively with a credentialed attorney.
Last Will and Testament
Wills remain the single best way to assure orderly dispensation of property to beneficiaries. But wills do more. They provide specific directives to the courts and any estate administrator or executor concerning intellectual property, the dispensation of Internet accounts, and any other matters you may want to direct. Courts provide immense latitude concerning soundness of mind when it comes to the making of a will. That’s important to know because too often family members presume that a transgender family member must be psychologically impaired because that family member is transgender and may attempt to challenge a will on the requirement that the maker be of sound mind. Most jurisdictions will dismiss such a challenge pertaining to a transgender family member, sometimes even if such had been incarcerated in a psychiatric institution at some time.4
California allows the making of a holographic will or one handwritten by the maker. Many states or other jurisdictions do not. But a fully prepared witnessed will gets the best recognition anywhere.5
A will may be structured many ways, depending upon the purposes of the testator, the testator’s assets, the testator’s liabilities, and testator’s commitments and needs to be as specific as possible. Here’s a common outline of a will to help you get an idea of content, with caution that this varies from person to person:
- This includes who you are, specific identifying information, an affirmation of your qualifications to write the Will, immediate family structure including marital status, and any pertinent associations or professional licensure. A transperson may use this section to affirm legal change of name and/or sex.
- Executor. This would include any succession thereof and whether bond should be required.
- These are the people who would be first considered as beneficiaries and so should be identified.
- Children may or may not in fact be beneficiaries in a Last Will and Testament for whatever cause. If a child has shown hostility to a transitioning parent and the parent wishes to exclude that descendent, this is the section the parent would use to do so.
- Assets. These can either be listed within the Will itself or refer to Attachments to the Will. These conclude personal property, real property, and intellectual property.
- This directs how your estate should be divided.
- Organ Donation. Because transgender people have generally been excluded from participation in organ donations, you might opt to omit this except to prohibit this. But the mood has been shifting in the United States so that this may not be the case in the future. Consult your attorney or Department of Motor Vehicles concerning the status of transgender people in organ donation.
- Specific Notifications. An Executor needs to know who and how others need to be notified of your death. This goes beyond immediate family. This includes Internet contacts. Billions of Internet accounts exist, many in social media. Provision should be made to an Executor concerning these last notifications, when to delete an account, and passwords pertaining to those accounts. Because these accounts and passwords become so fluid, these should be included as an attachment that you can periodically revise.
- Funeral Arrangements. Directions concerning remains should appear consistent with directions in your Living Will
- Signatures include your own, witnesses, and space for a Notary Public if required. Signatures of witnesses may not have any interest as Beneficiaries and need to state the location and date of witness.
- These are amendments to the Will that may occur at a later time that change any general intent or procedure you may direct. Consult your attorney to be sure a Codicil is sufficient or if a new Will must be produced.
- These would include legal identifiers and locations of property whether personal, real, or intellectual. They would include locations of Internet accounts and passwords that change over time, and any lists of people to notify that you may need to update periodically. Through Attachments one may enumerate any list without changing the basic intent or directives of the Last Will and Testament.
Advance Directives and Living Will
Most of us will agree that there are some things worse than death, most notably being forced to live in a vegetative state in a pricy medical facility while being helpless to do anything about it. Horror stories abound of terminally ill patients kept in a revolving door of treatment that renders a patient continually debilitated with each round while fattening the pockets of medical institutions if no legal directive intervenes. Enter the Advance Directives and Living Will which may simply be referred to as “advance directive” or “living will.”
Current practice has been to combine 2 documents: (1) advance directives for health care specifically, and (2) power of attorney for health care. Various medical facilities have forms of their own but an attorney may also provide you with a universally recognized form.6
The document may appear with the following sections:
- Identifying information. This section identifies you as a patient to the greatest specificity possible.
- Durable Power of Attorney. This designates an agent of your choosing who can direct medical staff in a course of treatment consistent with your advance directives.
- Alternate Appointees for Durable Power of Attorney. An agent may at any time become incapacitated. You can overcome this by providing this power to another in succession.
- Expressly Excluded Parties. You can specifically address the interference of relatives who have their own agenda at heart instead of your own best interests.
- Date and Signature of the Maker of the Power of Attorney. This affirms that you make these Advance Directives a living document.
- Living Will Acknowledgements. This gives a general affirmation of how you wish to be treated if in any case you become incapacitated and that you submit to the directives through your agent.
- Specific Preferences for Life Sustaining Treatment. This section addresses specifics issues concerning what may happen in a medical facility and how you intend to face them including (1) comatose conditions, (2) permanent severe brain damage, (3) permanent dependency, (4) bed confinement and breathing machines, (5) irreversible pain and severe symptoms, and (6) conditions of imminent death.
- Other Preferences of Medical Treatment. These pertain less to the life and death decisions directly but may become factors in care including (1) hydration, (2) transfusions, (3) trial or experimental treatments, (4) mental illness, (5) transplants, and (6) implants.
- Organ and Tissue Donations. You can use this section to make directives concerning any harvesting, or in the case of having faced discrimination as a blood or tissue donor you can refuse to permit harvesting.
- Revocation of Prior Directives. Just as in the general declaration of a will, your making of a living will must revoke any directives you have made in a past living will
- Signatures to the Living Will. Yours and Witnesses. A Notary Public may be required, especially if the document is to apply outside a medical facility that may provide this document.
Provisions For Internment and Assistance Letters
The best course of action to secure respect for how your remains should be treated after death is to make those arrangements yourself. If a transperson has designated a service for burial or cremation, that service will be bound by contract and also in California by the Respect After Death Act to carry out the wishes the transperson has made in advance.
The problem may arise in states without California’s Respect After Death provisions that anti-transgender relatives may attempt to overrule the wishes of the decedent by receiving ashes from a crematory only to inter them elsewhere under a name other than what the decedent had chosen.
It would be a good idea for a transgender person to secure permission in writing from a sympathetic party to be named as executor and to act in any advisory capacity to family members. Advance letters from the decedent may be accepted as further evidence on behalf of the sympathetic executor if a hostile family member wishes to challenge the will or the authority of the executor in court concerning the disposition of remains.
Mortuaries, cemeteries, and crematories all operate on “before need” and “at need” bases. “At need” cases often become priced higher than “before need.” Many unscrupulous entities charge whatever they think a family can bear when “at need.” But one can shop around for a good “before need” arrangement and lock in payment well in advance, saving loved ones the burden of debt because of the disposition of your remains, and assuring a more compassionate course of action.
Anticipating What Happens In the Probate Process
Some estates may not require the process of probate in every situation, especially if a state recognizes community property of small estates. But where multitudes of thousands of dollars worth of property become transferred the process is generally unavoidable. Consult an attorney concerning your particular needs.
As exists in California, petitions in cases in which a will exists are petitions for probate. Cases without wills are petitions for letters of administration. Variations of these exist. One does not need an attorney to file either petition. A petitioner without Attorney files In Propria Persona or In Pro Per. A public notice needs to run for a period of time before the court grants a hearing. However, such a petitioner needs to do some homework on probate and would do well to consult a paralegal or an attorney regarding the proper use of court documents. Thoroughness saves time. Sloppy petitions waste time. Errors complicate the process and familial bickering over estates sometimes force probate cases to fester for years to the detriment of beneficiaries through depletion of estate funds to cover legal and attorney fees. A well executed probate case may close after several months from initial filing with administrative powers bestowed by the court within the first or second hearing. In all this a will becomes the single most important document and will save much time and treasure in what could otherwise be a very messy process.7
Trusts have become a popular means that larger estates have avoided much of the cost of probate. The trust is a corporation to which a homeowner may deed real and other property. As a result, the homeowner no longer owns the property himself, but the corporate entity as a legal person owns it. Trusts have become an orderly way to transfer property from generation to generation at reduced cost.8
Revocable Transfer on Death Deed
Many states, most recently California, have initiated a program by which a person can sign an advance deed on real property that transfers it to another person upon the death of the maker of the deed. This Revocable Transfer on Death Deed (abbreviated TOD Deed or RTDD) acts much like a “Payable On Death” document one may execute through a bank. This provides an effective streamline for quickly and inexpensively transferring real property to a beneficiary. Consult an attorney or paralegal to see if your state participates in RTDD’s and for obtaining, filing, and issuing these documents.9
Whenever you apply for a bank account, regardless of the type of account, a signature card or equivalent will ask concerning a beneficiary. Often a transperson skips this section. But if nobody claims the funds after decease, funds will eventually be forfeited by escheat. You need to register the beneficiary of the account including Social Security number and date of birth with the bank consistent with the directives of your Will. That way the bank Beneficiary can withdraw funds upon presentation of the Death Certificate and required forms of identification. Without such registration of Beneficiary, a bank will only release funds upon presentation of the death certificate and letters of administration secured from the probate court. The difference can be significant with respect to timing. The time a death certificate can be obtained varies from a couple of weeks to a couple of months or more.10 Creditors won’t wait. Having a beneficiary, preferably the same person who petitions for letters from the probate court, can sooner pay those creditors. Probate cases often get heard 2 or more months after filing while pending the issuance of the required public notices and the initial hearing may not result in the grant of letters, particularly if bond issues intervene. With a beneficiary designated, that time gets cut by at least 50%.
Life insurance has long been regarded as a boon to Beneficiaries. Some investigations such as that conducted by 60 Minutes, caution that many life insurance companies, including some particularly prominent ones, have failed to pay beneficiaries and have actually continued to draw “nest egg” life insurance accounts down to zero even after death.11 The onus really falls upon the Beneficiary to open a claim on a life insurance policy. The beneficiary, therefore, needs to be informed that a life insurance policy exists and may even need some instructions concerning how to file a claim. These directions can be included in the will or an attachment thereto.
But another issue comes into play when it comes to beneficiaries collecting on life insurance. When filing a claim, does the insurer recognize the transperson’s legal identity or does it recognize the birth name or sex? A transperson who elects to take out a policy of life insurance needs to obtain evidence in writing that the proper name and sex exists on the policy lest the unscrupulous take advantage of the difference to cheat a beneficiary.
Special Needs for Terminally Ill Trans Youth
One of the genuinely heartbreaking aspects of terminal illness for transsexual youth is that transition might become unavailable because following those regimens may put those individuals at greater risk of harm.
Perhaps then more than ever, the identity of the terminally ill youth needs to be assured. A decree changing name, even under these conditions may give assurance of that respect of gender identity. But issues of depression can augment the issues of impending death because of the loss of a dream of transition. Other transpeople in such a patient’s circle can really make a difference, by being there to support the dying youth, by fully accepting that youth as one of their own, and helping the family thereof to whatever extent they can especially when it’s a close family member who has to act the part of the agent regarding advance directives on behalf of the terminally ill child.
If, however, a family has rejected their dying trans family member, Child Protective Services may step in to make them wards of the State and may also prosecute the rejecting family for child abandonment. An interested transperson may petition to help through the National Respite Network for volunteer work or for foster parenting.12 Actual acceptance will vary since different states enact different policies regarding the involvement of transgender people as foster parents, ranging from acceptance to exclusion and this remains one of the fronts of contention in the ongoing battle for the civil rights of transgender people.
Special Needs for Trans Elders
Some do transition late in life. Some have already transitioned but grow elderly. Both must face the issues of aging: pain, bodily changes, and dementia. A day will eventually come when such can no longer care for himself or herself. One may require a Conservator to administer the elder’s needs and estate. If assisted living or nursing care becomes mandatory, billings can stack up. Medical care funds of a given state may only allow so many weeks in an institution and discharge the patient temporarily for readmission at a later time, resulting in a revolving door of care.13 Conservator’s fees could likewise multiply so that property may have to be sold to pay the proceeds.14
Many trans elders do not have estates large enough to support professional conservators or extended medical care. But any responsible adult including family members or friends who can also meet bond requirements may apply for letters of conservatorship with the court in California and probably in other jurisdictions as well.15 It’s something groups of interested transpeople may consider doing for elder transpeople and may provide a good alternative to the county home.
These are all very general ideas worth taking into account for prudent action. It’s action to help the living. If the living turns out not to consist of birth families due to bigotry, there are succeeding generations of transpeople who can benefit from your prudence. With such an approach we can all together in death as well as in life raise an oppressed demographic to the full functionality of community as it really does need to be.
Unless otherwise noted, the tips in this article arise from the experience and practice of the writer as an assistant in probate and conservatorship cases involving real estate transactions and who has employed the precautions therein for own household.
- (n.a.) TransLifeline (n.d.) Website: http://www.translifeline.org/. Retrieved August 16, 2016.
- Atkins, Toni. Assembly Bill No. 1577 (September 26, 2014) Web: LegInfo: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1577. Retrieved August 16, 2016.
- Dembosky, April. California Gives Transgender People Right to Determine Sex Listed on Death Certificate (June 22, 2015) Web: KQED News http://ww2.kqed.org/stateofhealth/2015/06/22/new-bill-would-give-transgender-people-more-control-over-death-certificates/ Retrieved August 18, 2016.
- (n.a. but multiple contributions of courts in many states) The Pacific Reporter, Vol. 177. (1919, Digitized 2007) West Publishing Company, p. 963..
- (n.a.) Holographic Wills (n.d.) Web: Nolo: https://www.nolo.com/legal-encyclopedia/holographic-wills.html, retrieved August 18, 2016.
- (n.a.) Living Wills, Health Care Proxies, & Advance Health Care Directives (n.d.) Web: American BAR Association. http://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/living_wills_health_care_proxies_advance_health_care_directives.html Retrieved August 18, 2016.
- Brooks, Zev. Basic California Probate Process & Procedure Start to Finish (February 19, 2015) Web: YouTube: https://www.youtube.com/watch?v=WhVxg7O5Rck. Retrieved August 18, 2016.
- (n.a.) What is a Trust? (n.d.) Web: Fidelity: https://www.fidelity.com/estate-planning-inheritance/estate-planning/trusts. Retrieved August 18, 2016.
- Gatto, Mike. Assembly Bill No. 139 (September 21, 2015) Web: LegInfo: http://www.leginfo.ca.gov/pub/15-16/bill/asm/ab_0101-0150/ab_139_bill_20150921_chaptered.pdf Retrieved August 18, 2016.
- (n.a.) How Long Does It Take to Get a Death Certificate? (n.d.) Web: Reference*: https://www.reference.com/government-politics/long-death-certificate-a9273f54ebcb48f5. Retrieved August 18, 2016.
- Stahl, Leslie. Life Insurance Industry Under Investigation (April 17, 2016) Web: 60 Minutes: CBS News: http://www.cbsnews.com/news/60-minutes-life-insurance-investigation-lesley-stahl/. Retrieved August 18, 2016.
- (n.a.) Volunteer Respite: Valuable Resources. (n.d.) Web: ARCH National Respite Network: http://archrespite.org/images/docs/Factsheets/FS_18-Volunteer_Respite_FInal.pdf. Retrieved August 18, 2016.
- Mor, Vincent, PhD; Intrator, Oma, PhD, Feng, Zhanlian, PhD and Grabowski, Cavid C., PhD.Vincent Mor, PhD, Orna Intrator, PhD, Zhanlian Feng, PhD, and David C. Grabowski, PhD. The Revolving Door of Rehospitalization From Skilled Nursing Facilities (January 1, 2011) Web: National Center for Biotechnology Information (NCBI): http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2826971/. Retrieved August 18, 2016.
- Section 2541, California Probate Code. Web: LegInfo: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=02001-03000&file=2540-2548. Retrieced 8/18/2016.
- Vickrey, William C. et al. Handbook for Conservators (2002) Judicial Council of California. ISBN: 0-9721394-0-0. P. 4,5.