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  • Writer's pictureBrittany Cook

What's In A Name?

The steps transgender individuals need to take to change legal names on accounts and estate planning documents.


 

Transgender individuals endure numerous challenges on their way to living life as their true, full selves. On top of massive societal, familial, emotional, personal, and medical hurdles, they also face the practical hurdle of changing their legal name across dozens of official documents and accounts. That process, as many discover, involves a lot of work and even some mystery, as it is often unclear what is required and where to begin.


The importance of correctly changing your legal name

It is imperative that all legal and financial documents use the same, legally recognized name. This includes estate planning and trust documents, which often require multiple steps to update. Errors or inconsistency in these documents can lead to delayed or rejected transactions, possible fees or penalties, and other complications.


With that in mind, here is an overview of the key documents and steps transgender clients should be aware of when changing their name.


Part 1: Updating key state and federal documents

Before a person can update a name anywhere, they must complete a legal name change at the state level. Most states require a court order and charge a fee to change a name. In Pennsylvania, a person must submit a petition to the common pleas court in the county where they reside. Notice of the hearing must be published in two newspapers circulated in the county of residence or the contiguous county. The court may waive the publication requirement and seal records for the applicant’s safety. (54 Pa. Cons. Stat. Ann. § 701.)


The rules are nuanced in every state, so it is important to know and follow the specific requirements that apply to the client. The National Center for Transgender Equality provides a helpful breakdown of the requirements in each state. If a state requires a court order, be sure to ask for multiple certified copies of it, as there are many steps in the process that will require one.


Once the client receives the certified copies of the court order, she must submit a copy to the Social Security Administration to receive a new Social Security Card. Just like people who change their names when they get married, transgender individuals must go in person to the Social Security Administration to change their name. They should be aware that the Social Security Administration is not the fastest, so their timeline for processing a name change may overlap with other activities that involve a legal name, like filing taxes. If your client is filing an individual income tax return and has not yet received confirmation of the name change from the Social Security Administration, he should file using his former name. The client should speak with a CPA at the time of filing to make sure this is navigated correctly.


The client must also get a new driver’s license, or a state-issued identification. Depending on state rules, this may or may not require an updated Social Security card and/or other documentation, so the client should confirm the requirements before going. In Pennsylvania, a certified copy of the name change is required to change the name on a driver’s license. Additionally, if changing gender on a Pennsylvania license, the client must present a “Request for Gender Change.”


Part 2: Updating banking, estate and trust accounts

Once the client has received the legal name change documentation from the state and photo identification, she can move forward with custodian or bank name changes on personal accounts. Typically, a name change form is required along with submission of her new state-issued identification and court order.

Changing a name on estate planning documents can be simple or complex, depending on the nature of the documents. Basic estate planning documents like wills, powers of attorney and health care powers of attorney, are easy to change. The process generally requires an attorney but does not ring up an exorbitant amount of billables.


The process gets more tedious when there is a more complicated estate or trust. While some trusts are revocable, which allow for amendments without any restrictions, they still need to be amended through a legal document drafted by an attorney. Most modern irrevocable trusts include language allowing for administrative amendments. Changing the name of a beneficiary would be considered an administrative change. These amendments may be initiated by a trustee or a trust protector, depending on the bifurcation of roles under the trust agreement. In those situations, a lawyer can draft an amendment changing the legal name of the person and updating any references to the individual’s prior name and gender. Additionally, most modern documents allow for pronoun flexibility and allow the document to be read using different pronouns depending on the beneficiary.


If a trust document does not explicitly include mechanisms to make amendments, one must look to the statutes under the state law governing the trust. States like Pennsylvania permit modifications, which would allow the trust to accommodate the name change, using a Non-Judicial Settlement Agreement (“NJSA”). A modification by NJSA requires all beneficiaries and trustees to enter into the agreement. So long as the modification is not inconsistent with a material purpose of the trust, the NJSA can be made without going to court. Changing a name would not be considered inconsistent with a trust’s material purpose under the Uniform Trust Act adopted by Pennsylvania. (20. Pa.C.S.A Descendants, Estates and Fiduciaries § 7710.1.) If the other beneficiaries will not sign off on the modification, the beneficiary may have to go to court to modify the document to reflect his or her new name.


There are other methods by which a trust can be changed under various state laws if the trust does not explicitly provide for administrative amendments. Regardless of the language of the document or the trust’s governing law, an attorney must be engaged to make these changes. Once the trust is modified, it must be sent to the bank or custodian handling the trust. A custodial form is often required, along with the legal documentation showing the name change of the beneficiary and the trust modification.


At the end of it all, if the name of the trust has changed (because it includes the beneficiary’s name), it is imperative that the trustee file a name change for the trust with the IRS. This is done by including IRS Form 56 and the trust modification when submitting the trust’s tax return to the IRS. This is important for tax filing purposes - if tax is paid electronically and the name of the trust on the custodian does not match the name on file with the IRS, the IRS will reject the payment.


Changing a name for identification and estate planning purposes is only a fraction of the issues that transgender individuals are facing. Being equipped as an advisor to provide the instructions and insight discussed here, is a small, but valuable service that can ease the complications of completing a name change.



Brittany Cook

Brittany Horn Cook is a Managing Director, Wealth Planner and Fiduciary Council at Tiedemann Trust Company. Brittany works with UHNW clients and their advisors across the US to develop and administer custom trust, tax, and estate planning solutions. Brittany brings experience with Delaware trust law and related advantages relative to each client’s specific short-term and long-term objectives. Brittany earned her JD from the Rutgers University School of Law and LL.M. in Taxation and Estate Planning Certification from Temple University. Brittany is a board member of the Brodsky Center at the Pennsylvania Academy of Fine Arts.

 

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