Things to consider when writing your will as an LGBTQIA+ person

Writing your will can be daunting, especially if the traditional guidance is not written with your identity in mind

But it can also be an important way of sharing your wishes for what happens after you die.

These wishes will vary from person to person, and your LGBTQIA+ identity could impact them. You might want to:

• Leave some money, property or personal items to your partner(s)

• Be buried, or have your ashes interred (meaning buried), alongside your partner(s)

• Have your partner take care of any children you have that are not biologically related to them

• Be buried or cremated in particular clothing, or wearing particular gender-affirming items used for packing and padding

• Have your death registered under the legal name you currently use, plus any other names you go by, even if they do not match the ones on your birth certificate

• Have your LGBTQIA+ identity reflected in your funeral ceremony

These are all things that you can request in your will. But responsibility for making them happen lies with your executors.

An executor is a person you name in your will as responsible for sorting out your affairs after you die

This includes your money, property and belongings. Some people, like lawyers and people who work for HMRC, might refer to this as your ‘estate’. Your executors will also have legal control over what happens to your body after you die, including making decisions about funerals, and anything else that needs to happen after you die. You can name anyone as an executor, as long as they’re over 18 when you die (or 16 in Scotland.) But it tends to involve a lot of work, and some people could find it stressful or time-consuming.

If your LGBTQIA+ identity does impact your wishes, it can be a good idea to make sure your executors are people that know you’re LGBTQIA+.

Your executors should also be people who:

• You trust to make decisions on your behalf

• You’ve checked are willing to take on the role

• Will be able to handle lots of work and responsibility

There might be some people in your life who do not embrace your LGBTQIA+ identity, but still want to control what happens at your funeral. If this is the case, you could name executors who will be able to advocate for you, even in difficult situations.

Your will is where you say what you want to happen to your money and belongings after you die

Residual estate

Your ‘residual estate’ is the ‘pool’ of your belongings, money, property and other assets, minus:

• Debts

• Funeral costs, if you (or someone else) has not already covered them

• Estate administration fees

• Specific gifts you’ve left

You can divide your residual estate between your loved one by percentages in your will. That might sound like “50% will go to my partner and 50% to my best friend”. Or you can leave all of it to one person.Your executor is the person who’s in charge of carrying out these instructions. 

Lots of people choose to leave their estate to members of their close family, often their partner(s), children and grandchildren. But you might prefer to give some or all of your money to friends, or to particular charities.

Specific gifts

Some people choose to give specific items to particular family members or friends. These items tend to have some sort of shared meaning, like an ornament that brings back happy memories of a particular event.

If you do not say what you’d like to do with particular items, or if there are things left over, these will usually fall into your ‘residual estate’. This can sometimes cause disagreements if multiple people want to inherit a particular item of sentimental value.

If there are particular items you think your loved ones may have disagreements about, it could be a good idea to name specific people to have them.

There are certain people who can ask for money or property from your estate, even if you have not left them anything in your will

These people are your:

• Spouse or civil partner, including former spouses or civil partners if they haven’t remarried or entered a new civil partnership

• Partner(s) that you’ve been living with for more than two years

• Children and dependants, including children you’ve adopted, fostered or looked after as if they were your own children

• Other people who were financially dependent on you

Some people call this ‘claiming against your estate’.

They will normally only be able to do this if you’ve left them unable to take care of themselves. For example, if you owned a house and you had been living in it with a partner for more than two years, but you did not leave the house to that partner, they might be able to claim some money or property from your estate.

If you’re misgendered in someone’s will, this should not impact what you inherit, provided it’s clear it’s you they’re referring to

Some people worry that if someone refers to them in a will with the wrong gendered language, they will then be unable to claim their inheritance. This is not true: you should be able to inherit, but the clearer the will is in identifying you, the easier this process will be.

You could ask that whoever is writing the will also references other identifying features, like your name and date of birth. If it’s unclear who they referred to, you could end up in a legal dispute - and these are often long and expensive.

For example, if you’re a trans woman or non-binary person, and a parent refers to you as their son, you should still be able to inherit whatever they’ve left you - regardless of what name or pronoun you currently use. But to avoid this, you could ask them to mention further identifying features.

This also applies to legal names. Provided it’s clear that you’re who the will refers to, you can inherit - even if the name they use is not your legal name, or the name you use in everyday life.

There are some situations where your relatives can apply to deal with your estate and funeral plans

If you do not leave a will, or if your will is not valid, this is called dying 'intestate’

This means no one automatically has the power to deal with your estate. Instead, someone needs to apply to become your ‘administrator’, meaning they take on this power without having a will to work from.

Who can apply depends on how they’re related to you, and whether there are other relatives who could take over.

Whoever becomes your administrator will have to divide up your estate according to the ‘rules of intestacy’, which are special rules for what happens to someone’s estate when they don’t leave a will.

These rules tend to mean that your closest relatives can inherit part of your estate, even if you did not want them to

These rules also tend to mean that, if you’re not married to or in a civil partnership with your partner, they will not inherit any of your estate. But they can make a claim against it, as explained above.

Some LGBTQIA+ people might prefer that their family do not have control over what happens after they die

This might be because:

• You have a difficult relationship with your family, and worry that they will not respect your wishes for what happens when you die

• You’re not in touch with your family, and do not think they’ll be the best people to make decisions on your behalf

• You think your family will not understand why certain things are important to you, like having a burial or cremation in clothing that expresses your LGBTQIA+ identity

If you’d rather your family did not make decisions about your estate or what happens to your body after you die, there are some steps you can take to avoid this.

You could:

• Write a will, and make sure your loved ones know where to find it 

• Nominate multiple executors, in case your ‘first choice’ is unavailable

• Check that your executors understand what they will need to do, and that they’re happy for you to nominate them

• Arrange for a professional to be your executor

You can use your will to specify who should take care of your children, but this has limitations

This only applies to children you have parental responsibility for. This usually means:

• You gave birth to the child, and haven’t subsequently given up your parental rights

• You’re named on the child’s birth certificate as a parent

• You have legally adopted the child

• When the child was born, you were married to or in a civil partnership with the person who gave birth

• Where someone becomes pregnant through fertility treatment (including being inseminated by a donor), you were married to or in a civil partnership with the pregnant person at the time of the treatment

• You have otherwise been legally assigned parental responsibility

You can use your will to say who you’d like to become your child’s legal guardian. This person will take on parental responsibility for your child, meaning they will have a legal requirement to take care of them.

They will only become your child’s guardian if there are no surviving people with parental responsibility. If there is someone else who has parental responsibility for your child, they will usually become their legal guardian, regardless of what you have written in your will.

This means that if you have parental responsibility, but your partner does not, they might not automatically be the person who takes care of your child. They will need to legally adopt your child to become their default guardian.

You can say what you would like to happen to you after you die in your will, but this is not legally binding

This includes things like:

• Whether you want to have a burial or cremation

• What clothes, makeup and other accessories you want to wear when you reach your final resting place

• The details of your funeral - such as the dress code, venue and who you’d like to attend

Because this part of your will is not legally binding, it’s important to choose executors who will respect your wishes. You could also discuss your wishes with your executors, to make sure you’re all on the same page.

If your family does not know that you’re in an LGBTQIA+ relationship, you might worry that your partner(s) will not get an invitation.

To make sure they can attend, you could:

• Write in your will that you’d like them to be at your funeral

• Choose executors who know that you and your partner are in a relationship

• Speak privately with your executors before you write your will, to let them know that it’s important that your partner is there

Most funerals are public events, so it can be difficult to stop particular people from attending. But you can also ask your executors to make sure certain people are not invited, or that the event is not publicly advertised. This should minimise the chances of unwanted guests.

Funeral plans will sometimes fall through. The venue you want could be unavailable, or your favourite item of clothing might turn out to be made of a material that you cannot wear for a cremation. For this reason, you might give your executors backup options, so they know they’re making choices you agree with.

Your will can only cover what happens after you die

Your LGBTQIA+ identity might affect who you want to manage your end-of-life care, if you need it.

This person could end up making decisions on your behalf about things like:

• Whether you continue taking hormone replacement therapy

• Whether your carers dress you in gender-affirming clothing

• The people who can visit you, such as your partner(s)

You could make a ‘lasting power of attorney’. This is where you nominate a particular person to make decisions on your behalf in the event that you’re alive, but unable to make decisions by yourself - for example, if you become very unwell.

If your LGBTQIA+ identity is likely to impact these decisions, you could nominate a lasting power of attorney to someone who knows you’re LGBTQIA+, or who you trust to make decisions you’d feel comfortable with.

You can also state particular instructions in your lasting power of attorney - for example, that your attorneys should ensure you continue to be prescribed hormone replacement therapy for as long as possible.

You make a lasting power of attorney by:

1. Completing a form

2. Getting some specific people to sign it

3. Registering it with the Office of the Public Guardian

When you die, whoever has lasting power of attorney will no longer be able to make decisions on your behalf, unless you also nominate them as your executor.

If you’re looking to work with a professional will writer, your LGBTQIA+ identity might impact who you choose

Some people find it easier to get a professional to write their will, especially if their situation is more complicated. But, sadly, not all professional will writers will understand LGBTQIA+ identities.

An LGBTQIA+ friendly will writer will tend to:

• Ask for both your legal name and the name you’d like them to use for you

• Use gender-neutral language when writing wills

• Not make assumptions about the gender of your partner(s)

• Allow for complicated family structures

• Let you communicate with them over the medium you feel most comfortable, such as online

• Offer to consult with you in-person or over the phone if your situation is more complex

• Be empathetic and understanding

There are lots of options available when it comes to professional will writers, and you should be able to find someone who respects your identity. If you’re unsure, you could ask your potential will writer what experience they have in working with LGBTQIA+ clients.

Making a detailed will can help your loved ones make decisions that are right for you

Some people find writing their will quite challenging. But it can be an important way of expressing your wishes for what happens to you when you die, especially if you worry there might be disagreements.

If you want some guidance, you could work with a professional will writer. This tends to be an especially good idea if your situation, estate or wishes are more complex.