Category: Digital Assets

Steps to Take for End-of-Life Planning

Steps to Take for End-of-Life Planning

Most people don’t consider anything about planning for incapacity or death to be joyful. However, if you consider estate planning documents as a way to share your wishes and make your departure easier for those you love, as well as a means to express your thoughts and feelings, it could make these tasks a little cheerier. A recent article from The Washington Post, “6 joyful steps for end-of-life planning,” could help reframe how you think of estate planning. There are some concrete steps to take for end-of-life planning.

From a practical standpoint, death and incapacity are complicated for loved ones. They will appreciate your preparing an advance health directive, which should be created when a person is healthy, and not when they are in a hospital bed. The same goes for funeral arrangements, which are costly. There are so many choices and decisions to make—do your loved ones even know what you want? Leaving instructions and paying in advance will remove the burden for adult children trying to know what you wanted and dealing with the expense of paying for a funeral.

Digging through a loved one’s credit card bills, cellphone accounts, bank accounts and internet passwords is a big challenge in today’s digital world. It was far easier when there were stacks of paper for every account. Today’s executors need to have all of this information to avoid lost assets, avoid identity theft and prevent roadblocks to wrapping up your estate.

Here’s a checklist to help get your estate plan moving forward.

1 Create a crisis notebook. One binder with all estate planning documents will make it easier for loved ones. You should make additional copies but keep originals in one place—and tell your executor where the binder can be found. Create a worksheet of your many documents, so loved ones will know what they are looking for.

2 Have an advance directive created while you are having your estate plan made. This tells your loved ones what you want in case of incapacity and end-of-life decisions.

3 Have a will created with an experienced estate planning attorney. Without a will, the laws of your state determine how your property is distributed and who raises your minor children. Wills are state-specific, so a local estate planning attorney is your best resource. Be wary of online documents—if they are deemed invalid, it will be as if you didn’t have a will.

4 Make a digital estate plan. No doubt you have more than one email account, shopping accounts with more than a few retailers, credit cards, car leases or loans, home mortgage payments, social media, cloud storage, gaming accounts and more. Without a complete and comprehensive list of all accounts, your executor won’t know what needs to be closed, where your personal documents or photos live or how to retrieve them.

5 Plan your funeral. Yes, it is a little morbid, but do you want your loved ones to have to incur the cost and the emotional burden of planning, when you can do it for them? You’ll feel better knowing your wishes will be followed, whether it’s for a “green” funeral or a cremation, with a long period of mourning following your faith’s tradition or a short memorial service.

6 Write a letter of intent and any final farewells. This is an opportunity to share your thoughts with those you love, with healthcare providers and anyone else who matters to you, about healthcare decisions at end of life, or to convey your values, hopes and dreams for those you love.

When you take these steps for end-of-life planning, you’ll be surprised at the sense of relief you feel. If you would like to learn more about end-of-life planning, please visit our previous posts. 

Reference: The Washington Post (Jan. 5, 2023) “6 joyful steps for end-of-life planning”

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You Need a Digital Estate Plan

You Need a Digital Estate Plan

You are interested in creating an estate plan to manage your tangible assets. That is great, but you also need a digital estate plan. Laws about intangible assets used to be a legal niche practice area. However, today’s estate planning attorney addresses digital assets as much as tangible assets, according to the article “How to Start Digital Estate Planning in 2023” from yahoo! Social media, emails, websites, photos and even the contents of a hard drive contain a vast amount of digital assets. Managing these assets is known as digital estate planning.

Digital estate planning is the process of including online and digital assets, a simple concept but one which is quite complicated. Assets in your digital estate include (but are by no means limited to):

  • Social media accounts
  • Websites and domain names
  • Online stores and businesses
  • Software and code
  • Pictures, video, and other media
  • Financial records or financial assets owned digitally
  • Contents of hard drives, phones, tablets and other devices
  • Contents of cloud storage

Today, your digital assets can be some of the most important assets left behind. Photos are the photo books of today, and websites are often the family’s business. Neglecting to plan for digital assets is the equivalent of putting family heirlooms, photos, stock certificates and cash into a storage unit and neglecting to tell anyone of the existence of the storage unit, or how to access it.

Passwords and logins. The sheer volume of passwords, combined with the increase in two-factor authentication, makes it difficult to keep track of information for users. Imagine what your executor will face when trying to locate digital assets. You need to have a secure record of accounts, including the platform, your user name, login and password information. Keeping an old-school logbook of important user names and passwords is an option, since online password storage sites themselves are occasionally hacked.

Legal authority for access. There are a surprising number of laws about who is allowed to access your digital access. Your last will needs to be clear in directing your executor as to what you want to happen to specific digital assets. Make it clear who is to inherit the account and what you want them to do with it.

Distribution and rights. One of the growing problems with digital assets is that often companies are selling indefinite licenses disguised as purchases. You may think you own something, only to find you simply rented it. On Amazon Prime, the button may say “Buy,” but you are actually downloading a licensed product and the company retains the right to end your access at its discretion. Such licenses typically expire upon the death of the buyer, with no ability to transfer the data or product to anyone else.

Your estate planning attorney will be able to explain why you need a digital estate plan and how to prepare it, so it is as protected as your traditional assets. While making a complete inventory of digital assets may be overwhelming, consider the value of such assets as family photos and videos. Chances are, they’re worth passing down to your descendants. If you would like to read more about managing digital assets, please visit our previous posts.

Reference: yahoo! (Jan. 28, 2023) “How to Start Digital Estate Planning in 2023”

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Digital Assets need to be Included in Planning

Digital Assets need to be Included in Planning

Most of us don’t even realize just how much of our life is lived online, from streaming services and banking to apps to monitor our front door. All of these online accounts are digital assets and need to be included in estate planning says a recent article, “Estate planning and online accounts,” from American Legion.

Start by making a complete list of all of your online accounts, together with information about each account. Your list should include username, password, account number and a description of what each account includes. If you change passwords frequently, as recommended by cybersecurity experts, you’ll need to update your inventory every time.

Digital assets fall into four major types: personal, business, financial and social media. Personal accounts including emails, photos, videos, music and apps used on smart phones or tablets. This information is typically backed up on a computer hard drive or cloud-based storage account.

Financial assets include savings and checking accounts, retirement accounts, investment accounts, utility accounts and shopping and frequent flyer accounts. If you do banking or investing online, or if you own cryptocurrency, you’ll want to include these accounts.

Business related accounts include intellectual property, websites or blogs, written work, photos, videos, musical compositions and software. If your side gig includes selling items on eBay or Esty or similar websites, this information also needs to be included in your digital asset inventory.

Social media accounts include well-known platforms like Facebook, LinkedIn, Twitter, Snapchat, WhatsApp and any other platform where you are actively engaged. Gaming sites, e-sports and gambling sites should also be included.

Storage and protection is the second part of a digital estate plan. This involves saving the list and backing up important files and account information. The inventory itself needs to be secured, as it could easily be used to access your identity and steal your entire online life. The inventory can be as simple as a list on a pad of paper, stored in a secure location. If it is stored in a digital manner, make sure it is encrypted. There are programs to store and encrypt passwords. However, they are only as good as the software used to create them.

Saving the information on a desktop, laptop or tablet is risky, since these devices are hacked and contents are compromised fairly often. An external thumb drive might work. However, what if it was lost?

Select a digital executor and discuss your digital assets with them. Many states have now passed laws governing digital assets. Speak with an experienced estate planning attorney to learn if yours is among them. On some platforms, the executor needs to have been named in advance as a legacy contact before they are legally permitted to access the digital asset. In many cases, having the user’s name and password doesn’t give the executor a legal right to access the accounts according to the Terms of Service Agreement (TOSA) between the user and the platform.

Your estate plan should include a letter of instruction to the digital executor to tell them specifically what you wish to happen to your online accounts and digital assets. It should include recommendations for the distribution of various accounts, assets, files and information to heirs. It may be needed to prove your wishes or directives for digital assets, if there should be a challenge to the executor.

Managing digital assets is a new and changing area of the law and need to be included in your estate planning. Making provisions for your digital estate will make it possible for your executor to protect your digital assets, as much as a traditional estate plan protects traditional, tangible property. If you would like to learn more about managing digital assets, please visit our previous posts.

Reference: American Legion (Dec. 13, 2022) “Estate planning and online accounts”

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Conducting an Estate Inventory is Vital

Conducting an Estate Inventory is Vital

When a loved one dies, it may be necessary for their estate to go through probate—a court-supervised process in which his or her estate is settled, outstanding debts are paid and assets are distributed to the deceased person’s heirs. An executor is tasked with overseeing the probate process. An important task for an executor is submitting a detailed inventory of the estate to the probate court. Conducting an estate inventory is vital to ensuring your probate is not problematic.

Yahoo Finance’s recent article entitled “What Is Included in an Estate Inventory?” looks at the estate inventory. During probate, the executor is charged with several duties, including collecting assets, estimating the fair market value of all assets in the estate, ascertaining the ownership status of each asset and liquidating assets to pay off outstanding debts, if needed. The probate court will need to see an inventory of the estate’s assets before distributing those assets to the deceased’s heirs.

An estate inventory includes all the assets of an estate belonging to the individual who’s passed away. It can also include a listing of the person’s liabilities or debts. In terms of assets, this would include:

  • Bank accounts, checking accounts, savings accounts, money market accounts and CDs
  • Investment accounts
  • Business interests
  • Real estate
  • Pension plans and workplace retirement accounts, such as 401(k)s, 403(b)s and 457 plans
  • Life insurance, disability insurance, annuities and long-term care insurance
  • Intellectual property, such as copyrights, trademarks and patents
  • Household items
  • Personal effects; and

Here’s what’s included in an estate inventory on the liabilities side:

  • Home mortgages;
  • Outstanding business loans, personal loans and private student loans;
  • Auto loans associated with a vehicle included on the asset side of the inventory
  • Credit cards and open lines of credit
  • Any unpaid medical bills
  • Unpaid taxes; and
  • Any other outstanding debts, including unpaid court judgments.

There is usually no asset or liability that’s too small to be included in the estate inventory. Working closely with an estate planning attorney to make sure you are conducting an estate inventory is vital to a smooth probate process. If you would like to learn more about probate, please visit our previous posts.

Reference: Yahoo Finance (Feb. 15, 2022) “What Is Included in an Estate Inventory?”

 

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Incorporate Cryptocurrency into your Estate Plan

Incorporate Cryptocurrency into your Estate Plan

If you have $10 in a cryptocurrency wallet or $1 million stashed offline in cold storage, you need a plan to help your next of kin gain access when you die, especially if heirs are not familiar with the brave new world of digital money. That’s the no-nonsense message from a recent article titled “What Happens to Your Crypto When You Die? Make a Plan, Or Lose Your Investments Forever” from Next Advisor. It is estimated that early buyers of cryptocurrency have already lost millions or billions because they died without a succession plan or lost their wallet keys and were not able to access their accounts. You need to incorporate cryptocurrency into your estate plan.

Cryptocurrency is not small change today. It is here to stay.

Crypto estate planning is a balance between keeping the assets secure and accessible at the same time. Bitcoin and other cryptocurrencies are decentralized, meaning they are not issued by any country’s central banking authority. Unless another person has the right information to access the account, the assets will be gone permanently when you die. There is no paper trail and no 800-number to call.

The first step is to set up proper storage for the crypto and any other digital assets, like NFTs (non-fungible tokens) under a number of layers of security. You will need to set up tiered back-up accounts to store these assets, with varying layers of security.

If you buy and sell crypto on an exchange, loved ones may be able to access the exchange by signing into the company’s portal, similar to ones commonly used for banking, accounting, or financial investments. They need to know your password and username and will probably need access to your cell phone and email to receive a two-step verification code.

However, if you have significant sums of cryptocurrencies, you will need a more secure back-up option, which will be harder for executors to access. You will need to give your executor a crypto education as well as an estate plan.

There are centralized crypto exchanges, like Coinbase. There are hot wallets, also known as mobile wallets, that are not on a centralized platform and require a 12 or 24 word secret seed phrase to gain access. There’s also cold storage, which works like a digital safe via a USB drive. A 12 or 24 word secret seed phrase is also needed to recover or backup account information.

Your plan to pass these assets to the executor includes a physical copy of security phrases and a physical fireproof, waterproof lock box. Secure your cold storage hardware wallet—a private wallet key with a 12 or 24 word secret seed phrase—in the lockbox and make sure your executor knows the location of the safe and how to access it. Then, in one or preferably more than one separate location, store physical documents describing each digital wallet.

Describe each wallet in detail: is it an exchange, mobile wallet, or hardware wallet? Include all of the security keys, seed phrases, usernames, password information with instructions for each, including cell phone codes for the mobile wallets on your phone. Do not store anything on the internet.

You will likely need to educate family members about how crypto and other digital assets work.  They may not be comfortable with this new kind of asset. An alternative is to liquidate digital currency into more traditional assets, by transferring the crypto from the wallet into a centralized exchange, then selling it for U.S. dollars. There will be taxes due, since the IRS recognizes selling crypto as selling assets. Incorporating cryptocurrency into your estate plan is a complicated process that should only be undertaken with the advise and guidance of your estate planning attorney. If you would like to learn more about protecting digital assets, please visit our previous posts. 

Reference: Next Advisor (Feb. 17, 2022) “What Happens to Your Crypto When You Die? Make a Plan, Or Lose Your Investments Forever”

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storing passwords in case of death

Storing Passwords in Case of Death

As more and more aspects of our lives become digital, storing passwords in case of death becomes even more urgent. Despite having the resources to hire IT forensic experts to help access accounts, including her husband’s IRA, it’s been three years and Deborah Placet still hasn’t been able to gain access to her husband’s Bitcoin account. Placet and her late husband were financial planners and should have known better. However, they didn’t have a digital estate plan. Her situation, according to the Barron’s article “How to Ensure Heirs Avoid a Password-Protected Nightmare” offers cautionary tale.

Our digital footprint keeps expanding. As a result, there’s no paper trail to follow when a loved one dies. In the past, an executor or estate administrator could simply have mail forwarded and figure out accounts, assets and values. Not only don’t we have a paper trail, but digital accounts are protected by passwords, multifactor authentication processes, fingerprints, facial recognition systems and federal data privacy laws.

The starting point is to create a list of digital accounts. Instructions on how to gain access to the accounts must be very specific, because a password alone may not be enough information. Explain what you want to happen to the account: should ownership be transferred to someone else, who has permission to retrieve and save the data and whether you want the account to be shut down and no data saved, etc.

The account list should include:

  • Social media platforms
  • Traditional bank, retirement and investment accounts
  • PayPal, Venmo and similar payment accounts
  • Cryptocurrency wallets, nonfungible token (NFT) assets
  • Home and utilities accounts, like mortgage, electric, gas, cable, internet
  • Insurance, including home, auto, flood, health, life, disability, long-term care.
  • Smart phone accounts
  • Online storage accounts
  • Photo, music and video accounts
  • Subscription services
  • Loyalty/rewards programs
  • Gaming accounts

Some digital accounts may be accessed by using a username and password. However, others are more secure and require biometric protection. This information should all be included in a document, but the document should not be included in the Last Will, since the Last Will becomes public information through probate and is accessible to anyone who wants to see it.

Certain platforms have created a process to allow heirs to access assets. Typically, death certificates, a Last Will or probate documents, a valid photo ID of the deceased and a letter signed by those named in the probate records outlining what is to be done with assets are required. However, not every platform has addressed this issue.

Storing a list of digital assets, such as passwords, in case of death  is about as much fun as preparing for tax season. However, without a plan, digital assets are likely to be lost. Identity theft and fraud occurs when assets are unprotected and unused.

Just as a traditional estate plan protects heirs to avoid further stress and expense, a digital estate plan helps to protect the family and loved ones. Speak with your estate planning attorney as you are working on your estate plan to create a digital estate plan. If you would like to learn more about managing digital assets, please visit our previous posts. 

Reference: Barron’s (Dec. 15, 2021) “How to Ensure Heirs Avoid a Password-Protected Nightmare”

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What Assets are in an Estate?

What Assets are in an Estate?

Estate planning attorneys are often asked what assets are included in an estate, from life insurance and real estate to employment contracts and Health Savings Accounts. The answer is explored in the aptly-titled article, “Will It (My Home, My Life Insurance, Etc.) Be in My Estate?” from Kiplinger.

When you die, your estate is defined in different ways for different planning purposes. You have a gross estate for federal estate taxes. However, there’s also the probate estate. You may also be thinking of whether an asset is part of your estate to be passed onto heirs. It depends on which part of your estate you’re focusing on.

Let’s start with life insurance. You’ve purchased a policy for $500,000, with your son as the designated beneficiary. If you own the policy, the entire $500,000 death benefit will be included in your gross estate for federal estate tax purposes. If your estate is big enough ($12.06 million in 2022), the entire death benefit above the exemption is subject to a 40% federal estate tax.

However, if you want to know if the policy will be included in your probate estate, the answer is no. Proceeds from life insurance policies are not subject to probate, since the death benefit passes by contract directly to the beneficiaries.

Next, is the policy an estate asset available for heirs, creditors, taxing authorities, etc.? The answer is a little less clear. Since your son was named the designated beneficiary, your estate can’t use the proceeds to fulfill bequests made to others through your will. Even if you disowned your son since naming him on the policy and changed your will to pass your estate to other children, the life insurance policy is a contract. Therefore, the money is going to your son, unless you change this while you are still living.

However, there’s a little wrinkle here. Can the proceeds of the life insurance policy be diverted to pay creditors, taxes, or other estate obligations? Here the answer is, it depends. An example is if your son receives the money from the insurance company but your will directs that his share of the probate estate be reduced to reflect his share of costs associated with probate. If the estate doesn’t have enough assets to cover the cost of probate, he may need to tap the proceeds to pay his share.

Another aspect of figuring out what’s included in your estate depends upon where you live. In community property states—Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin—assets are treated differently for estate tax purposes than in states with what’s known as “common law” for married couples. Also, in most states, real estate owned on a fee simple basis is simply transferred on death through the probate estate, while in other states, an alternative exists where a Transfer on Death (TOD) deed is used.

This legal jargon may be confusing, but it’s important to know, because if property is in your probate estate, expenses may vary from 2% to 6%, versus assets outside of probate, which have no expenses.

Speak with an experienced estate planning attorney in your state of residence to know what assets are included in your federal estate, what are part of your probate estate and what taxes will be levied on your estate from the state or federal governments and don’t forget, some states have inheritance taxes your heirs will need to pay. If you would like to read more about placing assets in an estate plan, please visit our previous posts.

Reference: Kiplinger (Dec. 13, 2021) “Will It (My Home, My Life Insurance, Etc.) Be in My Estate?”

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estate planning documents everyone needs

Estate Planning Documents Everyone Needs

This is the time of year when people start thinking about getting piles or files of paperwork in order in preparing for a new year and for taxes. There are certain estate planning documents everyone needs. A recent article “How to Prepare, Organize and Store Estate-Planning Documents” from The Street gives useful tips on how to do this.

First, the most important documents:

Estate Planning documents, including your Will, Power of Attorney (POA), Healthcare Proxy, Living Will (often called an Advance Care Directive). The will is for asset distribution after death, but other documents are needed to protect you while you’re alive.

The POA is used to name someone to act on your behalf, if you cannot. A POA can be created to be specific, for example, to have someone else pay your bills, or it can be general, letting someone do everything from paying bills to managing the sale of your home. Be cautious about using standard POA documents, since they don’t reflect every situation.

A Healthcare Proxy empowers someone you trust to make medical decisions on your behalf. The Living Will or Advance Care Directive outlines the type of care you do (or don’t) want when at the end of your life. This alleviates a terrible burden on your loved ones, who may not otherwise know what you would have wanted.

Add a Digital POA so someone will be able to access and manage your online accounts (subject to the terms and conditions of each digital platform).

Your Last Will and Testament conveys how you want your estate—that is, everything you own that does not have a surviving joint owner or a designated beneficiary—to be distributed after death. Your will is also used to name a guardian for minor children. It is also used to name an executor, the person who will be in charge of carrying out the instructions in the will.

A list of all of your assets, including bank accounts, retirement accounts, investments, savings and checking accounts, will make it easier for your executor to identify and distribute assets. Don’t forget to check to see which accounts allow you to name a beneficiary and make sure those names are correct.

Both wills and trusts are used to convey assets to beneficiaries, but unlike a will, “funded” trusts don’t go through the probate process. An experienced estate planning attorney can create a trust to distribute almost any kind of property and follow your specific directions. Do you want your children to gain access to the trust after they have reached a certain age? Or when they have married and had children of their own? A trust allows for greater control of your assets.

Finally, talk with your family members about your estate plan, your wishes for end-of-life medical care and what you want to happen after you die. Write a letter of intent if it’s too hard to have a face-to-face conversation about these topics, but find a way to let them know. The documents listed above are the bare minimum estate planning documents everyone needs to acquire. Your estate planning attorney has worked with many families and will be able to provide you with suggestions and guidance. If you would like to learn more about estate planning, please visit our previous posts. 

Reference: The Street (Dec. 20, 2021) “How to Prepare, Organize and Store Estate-Planning Documents”

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Avoid Password Problems in Estate Planning

Avoid Password Problems in Estate Planning

Barron’s recent article entitled “How to Ensure Heirs Avoid a Password-Protected Nightmare” explains that even financial planners may not consider until too late, how difficult it can be to recover and access a loved one’s accounts after they pass away. Since we are much more paperless with our finances, getting access to these accounts can be extremely hard for heirs, if they don’t have the right information. That’s because digital accounts are protected by encryption, multifactor authentication and federal data privacy laws. There are ways to avoid password problems in your estate planning.

Create a list of digital accounts and instructions on how to access them. The list should include not only financial assets but social media and other accounts. Digital accounts that loved ones or advisors may need to access following a death include:

  • Traditional financial accounts
  • Cryptocurrency accounts
  • Home payment and utilities accounts
  • Health insurance benefits
  • Email accounts
  • Social media
  • Smartphone accounts
  • Storage and file-sharing
  • Photo, music and video accounts
  • E-commerce accounts
  • Subscriptions to streaming services, such as Netflix, newspapers, music services; and
  • Loyalty/rewards programs for airlines and hotels.

Create a list of accounts, passwords and access information, keeping it up to date as information changes and letting a trusted person, such as an executor or estate planning attorney, know its location. Without a password list, it can be a nightmare.

Note that with every digital account, there’s a specific process that heirs must undertake to gain access, which should then be communicated clearly in your estate plan. Make a list of all digital assets and their access information, but don’t include this in the will itself, since the document is part of the public record in probate.

Being prepared well ahead of time in your estate planning can help your family avoid password problems that may cause undue stress and delays as they probate your estate. It also ensures that they don’t forfeit significant financial assets concealed behind an impenetrable digital wall. If you would like to read more about protecting digital assets, please visit our previous posts.

Reference: Barron’s (Dec. 15, 2021) “How to Ensure Heirs Avoid a Password-Protected Nightmare”

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Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact Texas Trust Law to schedule a complimentary consultation.
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