May 1, 2018

Digital Asset Availability Limitations

Gaining access to the digital accounts of deceased loved ones is slowly becoming easier. That means that people need to think about what type of access they want to grant as part of their estate planning.

Even just a few years ago, it was almost impossible to gain access to the digital accounts of the deceased. Even when ordered to allow access by judges, tech companies would point to their terms of service and deny that access. This created many problems for families and estate administrators who needed access to those accounts for a variety of reasons. In Maryland, the legislature passed a law which became effective on October 1, 2016. The law allows Maryland residents to name a fiduciary, during incapacity and upon death, to access the resident's online accounts. DC has not yet enacted such legislation. For details on how to manage your digital assets, see an estate attorney.

In response to this problem, state legislators have slowly been passing new laws to gain access to digital accounts. As a result, some tech companies are beginning to change their policies to account for this. However, when it comes to your estate planning, do you want someone to have access to your digital accounts after you pass away? If yes, for how long should they have that access?

This subject was recently considered by the Wills, Trusts & Estates Prof Blog in "Digital Assets Estate Planning — Alternatives to Perpetual Access."

The problem? The longer a digital account remains open without someone monitoring it, the more likely it is to be hacked by someone who can use the information in it for criminal, fraudulent or other nefarious purposes. Cases of this happening are becoming much more frequent. It sometimes means that estate administrators must deal with all of the problems associated with identity theft in addition to their more traditional duties.

Given these potential abuses, you might want to direct in your estate planning that your accounts be closed completely, after the period of time necessary to wrap up your affairs.

Reference: Wills, Trusts & Estates Prof Blog (April 6, 2018) "Digital Assets Estate Planning — Alternatives to Perpetual Access."

April 23, 2018June 20, 2022

The Process of Getting a Will

If you do not have a will, you should know that the process of creating one is not difficult in most cases.

People who do not have estate plans, often think that the process of getting one can be more difficult than it normally is. It is not difficult to get that false impression, if you start doing some digging online.

You will be confronted with unfamiliar terminology and 10 to 15 step plans that can make estate planning seem very time-consuming. You can also find some online form companies that tell you that purchasing their products make creating an estate plan easy. However, once you start reading their documentation, it might all look difficult again because you do not know the finer legal details of estate planning.

The truth? Estate planning does not have to be that difficult to accomplish, as The New York Times discusses in “What It Was Like To Finally Write My Will.”

The author of the piece discovered that creating his will was not very difficult at all. The key thing that he did was to get a recommendation for an attorney from a friend. He then went to that attorney and told the attorney what he wanted to do.

The attorney discussed the options and the author was able to work with the attorney to determine what the best plan would be for his unique circumstances. The attorney then wrote the plan down formally and the author just needed to go back to the attorney’s office a few weeks later, to formally sign the will and everything was done.

Most people will find that estate planning is just that simple when they also choose an appropriate estate planning attorney.

Reference: New York Times (April 3, 2018) “What It Was Like To Finally Write My Will.”

April 13, 2018February 15, 2024

Handling Estranged Children

Sometimes parents and children become estranged and no longer stay in contact. How these children should be handled in the parents’ estate plans, depends on the situation and state laws.

For whatever reason, parents and their children do not always get along. They no longer talk to each other and may not even know anything about one another. In short, they may become estranged.

When parents have become estranged from their children, they need to know how to handle those children in their estate plans. One woman recently wrote to the Napa Valley Register to ask about her brother’s daughter in “Is daughter really disinherited?”

The woman’s brother had a child 30 years earlier. The brother had cut off all contact with the child’s mother, when she was under the age of one. The child was later adopted by her stepfather. In his trust, the brother did not mention the daughter by name. However, he used a general disclaimer that he did not want any unnamed relatives to receive anything.

The letter writer wanted to know if this daughter was really disinherited or if she could make a claim against the brother’s estate.

In this case, the answer was an easy one. When the daughter was adopted by someone else, any legal relation between the biological father and the daughter terminated. The daughter cannot claim to be a relative for estate law purposes. In cases where a child has not been adopted by someone else, the answer depends on state law. Some states assume that any child not specifically mentioned and disinherited in an estate plan, were left out as the result of a mistake.

Contact a estate planning attorney, if you have questions about estranged children and estate law in your state.

Reference: Napa Valley Register (March 15, 2018) “Is daughter really disinherited?”

April 9, 2018September 4, 2024

Make the Most of Tax Season

Don’t think of tax time as the worst time of year but as an opportunity to get a good estate plan.

There are two types of people who like tax season. One is accountants and the others are tax attorneys. For everyone else, it is the worst time of the year. Even accountants and tax attorneys are probably relieved when tax season is finally over, because no one likes doing their taxes.

Since you have to get all of your financial information for the year sorted out and digest it in the way the IRS requires, it, you will not have to do everything over again to create an estate plan, as Forbes points out in “Make A Better Plan This Tax Season.”

When doing your taxes, you are looking at many of the same accounts you would consider when creating your estate plan. That takes care of one step in the process. After that, you just need to gather information about all of your other assets that were not part of your taxes for the year.

For most people, the rest of the estate planning process is relatively simple. You just need to determine who you want to have your assets after you pass away.

To complete your estate plan, you should hire an experienced estate planning attorney. When the attorney has your financial information and knows who you want to receive what is in your plan, an estate planning attorney can help you determine the best way to write a plan to accomplish your specific objectives.

Reference: Forbes (March 19, 2018) “Make A Better Plan This Tax Season.”

April 5, 2018June 6, 2022

Who Really Needs an Estate Plan?

If you were to survey people about who most needs an estate plan, the most popular answer would likely be incorrect. People think that the wealthy need estate plans the most. However, that is not true. Parents with minor children need them more. Planning for young families is critical to protect loved ones.

One of the fascinating things about estate planning is how it is perceived by average Americans. When you talk to people about it, they often think of estate plans as a way for rich people to determine who gets their property when they pass away. That is a big part of it but it is not the only reason for estate planning. In fact, the wealthy benefit from planning more than other people, only if you think that money is the most important thing people have to protect and preserve.

Most people think protecting their children is more important than money. That is why parents with minor children have more reasons to plan their estates than wealthy single people, as Volume One points out in “When There’s a Will.”

When parents of minor children plan their estates, they accomplish two very important tasks. First, they figure out how their children’s expenses will be met. Parents who thoughtfully prepare their estate plans can decide who will handle their assets for the benefit of their children and how that will be done. Even more importantly, they can decide who will take care of their children, should they be orphaned.

An estate plan is the only means by which parents have a say regarding who should be appointed as the guardian of their minor children, if anything happens to the parents.

If you have minor children, talk to an estate planning attorney, so you can make sure they are taken care of if the worst happens.

Reference: Volume One (March 7, 2018 ) “When There’s a Will.”

March 30, 2018

Do You Want Your Child to Be Your Executor?

Without thinking about it too much, many people designate one of their children to be the executor of their estate. They should think about it carefully, before doing so.

The executor of your estate should be someone you trust to handle your estate just as you want it handled. You want to be certain that the executor will faithfully follow the instructions laid out in your will, including distributing your assets according to your wishes.

Many people trust one of their own children above all other potential candidates for this responsibility. They name that child as their executor, having put little thought into the consequences of doing so. It is not always a good idea, as Texas Lawyer discusses in "Mamas, Don't Let Your Babies Grow Up to be Executors."

Being an executor is not an easy job. If people do not know what they are doing, it is very easy for them to make mistakes. They can often be held personally liable for those mistakes.

An executor does more than just distribute the assets of the estate. He or she must be able to communicate with the court and with any heirs about the estate. If, for example, the executor and a sibling do not get along, there can be problems. In some cases, executors will need to invest assets for a period of time, before they can be distributed. The executors need to do that investing wisely.

Before naming one of your children to be the executor of your estate, think through whether it is a role you really want that child to have. It might be better, in some cases, to name a professional.

Reference: Texas Lawyer (March 6, 2018) "Mamas, Don't Let Your Babies Grow Up to be Executors."

March 19, 2018

A Big Myth Concerning Trusts

If you do too much reading online about the difference between wills and trusts, then you are likely to think of the two as something that you have one or the other. That is a myth.

One of the key concerns for people planning their estates today, is whether they should use a will or a trust. Everyone seems to have an opinion about which one of the two main estate planning vehicles is better for general purposes. The two are often discussed, as if they are oppositional.

If you do some research and decide you want to get a trust, then you might go to an online service, pay a fee and download a form to create a trust. The problem? Getting a trust does not mean you should not get a will. You still need a will, as Lake County News discusses in "The difference between a trust and a will."

It is likely that when you pass away you will have some assets that for one reason or another were never put into your trust. Those assets will need to be distributed by your estate and often under the guidance of the probate court. You need a will so what you want done with those assets can be done.

Often that will is only a “pour-over will” that directs that everything should be transferred to your trust. However, there are other things you might also need to accomplish with a will, such as directing who should be appointed as a proper guardian for your minor children. You also might have some assets you do not want to go through a trust for other reasons, for which a will would be appropriate.

The best way to make sure you have all the documents you need in your estate plan, is to hire an estate planning attorney to draft your plan.

Reference: Lake County News (Feb. 24, 2018) "The difference between a trust and a will."

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