When you draft a will, it is important that you store it in a safe location. For some people a safe location is under their bed, on the top shelf in their closet, inside a floor board or in the freezer. Others feel better having their last will and testament in the hands of a trusted relative or friend. Since your will explains what will become of your earthly assets and possessions after you die, it is of the utmost importance that it be protected from theft, tampering and destruction (accidental or intentional).
Given the number of external factors that can affect wills — fire, disgruntled heirs, humidity, desiccation — it is common for testators to store their wills in safe deposit boxes. If you have a relative who recently passed away and he or she left a safe deposit box behind that contains a will, it is important that you access the box as soon as possible. According to New Jersey State law, the personal representative of the deceased’s estate is allowed to access his/her safe deposit box in order to retrieve the will.
“On December 12, 2011 the Director re-issued the blanket waiver originally issued in 1992 authorizing the immediate release of the contents of a safe deposit box (to the qualified representative). The waiver is effective for the period from January 1, 2012 to January 1, 2017” See theState of New Jersey Department of of the Treasury Website.
Thus, a nominated executor can ask the bank to open a safe deposit box of the decedent, in the presence of a bank officer, to search to see if the Will or cemetery deed are located in the box. The person making the request has to be able to show that he/she is the nominated executor, and usually provide a copy of the death certificate. Then if the Will is located in the safe deposit box (and perhaps the cemetery deed as well) the bank officer is supposed to release those documents to the nominated executor so that he/she can go probate the Will. Once the Will is probated, the qualified executor then has the authority to go bank to the bank to review the contents of the safe deposit box with the bank officer, who may inventory the assets. The assets are inventoried, and then released to the qualified personal representative.
Despite the above, it is recommended that a client does NOT store an original Will or power of attorney in a safe deposit box; banks do not always easily comply with the request to have access for purpose of searching for the Will, even though they are supposed to do so. Also, if the safe deposit box does not have a co-signer, and the authority to access the box under the power of attorney which is also in the box, then the agent can’t get to it.
It’s a fact of life that we’re all going to die at some point. While it’s not something you probably want to think about, you can make things a lot easier on yourself (and your family) if you get everything in order now. Here’s what you need to do.
Your inevitable demise is hopefully not on your mind too often, but it’s still something you should think about long enough to get everything in order. Doing so ensures that everything in your life is organized so others can see what you want to happen after you’re gone, what you own, and how to handle a variety of situations.
If this sounds daunting, don’t worry too much: being unmarried, without children, and without a useful asset to speak of, I was able to get everything in order in about two hours (I still had a lawyer friend double-check everything to ensure I wasn’t accidentally giving my dog medical power of attorney). The more you own the longer it’ll take, but it’s not nearly as time-consuming as it looks because most of this stuff you probably already have ready to go.
Note: You can do a lot of this stuff on your own, but it’s a good idea to speak with a lawyer about your will, assets, and general estate planning. This guide is meant more to get you acquainted with terms, provide DIY options when applicable, and help you collect together what you need.
Decide What Happens After You Die
Planning for your death is actually two things: what happens after you die, and what happens if you’re ill and unable to handle decisions yourself. Let’s start with taking care of what happens after you die, starting with your last will and testament.
Write Your Last Will and Testament
Your last will and testament is a document that designates what happens with your property, guardianship of your children, and names the person (executor) who carries out your wishes after you die. If you don’t own a lot of property, a simple will is likely all you need.
It’s possible to draft up a simple will on your own, but it comes with its own set of pros and cons. These include problems with outdated information, specific state related tax issues, and how they handle specific trusts. As USNews notes, online wills are a one-size fits all solution, that can’t always account for the complicated situations of real life. However, if you only need a very basic will SmartLegalForms, LegalZoom, or RocketLawyer all provide a simple template for doing so for between $15 and $80. These laws and requirements change often, and if you don’t do it right you might unintentionally give someone more power over your estate then you want. Most simple wills have just a few sections where you can say what happens to your assets, and designate who gets any property you own.
When you’re drafting up your will, you’ll also name your executor. After you die, this is the person who handles your estate (all of your property), finances, debts, and everything else. It should go without saying this is a person you would trust to handle your estate when you’re alive. Once you die, a probate court will officially give power to your executor to handle your affairs. They do not have control over your estate until after you die.
Finally, to make the will legally binding, you’ll usually need to get signatures from at least two witnesses (who aren’t beneficiaries listed somewhere on the will), and it’s advisable to get it notarized by a notary public. You can usually find a notary public at your bank, and they act something like an official witness for legal forms.
If you have a lot of assets that you want to designate to multiple people, or to make sure your will is legally sound, you should speak with a lawyer about getting a more advanced will written up. Things start getting really tricky when finances are involved, and if you have a lot of assets it’s worth at least consulting with a lawyer (if you need help finding a reputable lawyer here’s our guide). I spoke with lawyer Elizabeth D Mitchell of Ambler & Keenan, LLC about the basics of what you can expect from an estate planning firm:
I usually start people out with a form and have them think about who they would name as their power of attorney. From there, we’d look at their assets and arrange for special circumstances. It’s important to remember that estate planning isn’t just what happens after death, it’s also about what happens if you’re incapacitated… What I always tell people is that it costs more to clean up a financial mess afterwards then it does to plan ahead.
Mitchell also adds that although it takes a little time to get everything in order, most estate planning lawyers offer some type of free consultation before they into your plan. This is because once they set up a plan with you, you’ll be dealing with them for the rest of your life so it’s important to know exactly what you’re getting into. Mitchell also recommends people at least speak with a lawyer about writing up their will even if they don’t own a lot of property because it’s possible a single mistake could mess everything up. As the New York Times points out, the law is different in every state, and something as minor as not declaring the document a will out loud will make it invalid in certain states. A lawyer is also handy to set up trusts so your family gets paid out. According to the Wall Street Journal, trusts are increasingly important:
Rick Law, founder of estate-planning firm Law ElderLaw LLP in Aurora, Ill., says estate planners increasingly recommend revocable trusts in addition to wills, since they are more private and harder to dispute. “Every will is like a compass that points toward the closest courthouse,” he says.
A revocable living trust can be changed anytime during your lifetime. After you transfer ownership of various assets to the trust, you can serve as the trustee on behalf of beneficiaries you designate. Provided you do so, there aren’t any ongoing fees.
That said, if you don’t own that much, or you don’t mind leaving it all to one person, the whole process of writing out your own will takes about 20-30 minutes. Photo by Ken Mayer.
Outline the Funeral or Memorial Service
Obviously this step is optional, but if you want something specific to happen at your funeral or memorial service after you die it’s a good idea to get it in writing, and let your family know your wishes. Doing so gets rid of the headache of planning for your family, and ensures you get what you want. You don’t need to go in and plan everything out, but here are a few things worth considering:
If you want a burial, you need to find a grave plot. You’ll need to contact a local cemetery and purchase a plot if so. If you want a specific cemetery or plot, the earlier you do this step the better.
If you want cremation, you’ll work with a funeral director, so contact a local funeral home and arrange any details with them.
Decide if you want to pre-pay for any arrangements so you don’t have to worry about your family paying for anything while they wait to get access to your money. Since the average funeral is around $6,500, so it might be helpful to pay ahead of time.
At this time, you can also decide if you want anything specific in a memorial service, how you want the wake handled, and everything else. It’s also common to add these details to the will if you want to make sure your wishes are followed. Obviously this is a very personal event, and what you want depends a lot on your religious and social background. It’s a good idea to make your wishes known to family members to take the pressure off them when the time comes.
Designate What Happens If You’re Ill or Incapacitated
Just as important as what happens after you die is what happens if you’re ill, incompetent, or incapacitated. For this you need a living will, a power of attorney, and a medical power of attorney. If it sounds a little scary, don’t worry, it doesn’t take a lot of time and by the end you’ll know that you’ll only get the medical support you want.
Designate a Power of Attorney
A power of attorney is the person who can attend to financial or legal matters if you fall ill or are unable to handle them for yourself. It’s a good idea to choose a power of attorney so that they can attend to your financial and legal issues immediately after you fall ill. The power of attorney expires when you die, and the control of your finances typically shifts to the executor you named in your will. In some cases this is the same person.
The form to designate a power of attorney varies by state, but if you want to do it yourself you can get a document from the same services where you did your will (SmartLegalForms, LegalZoom, or RocketLawyer). If you’re giving one person complete control over everything you can likely manage to fill this out yourself, but if you want to limit what they can do it’s likely best to consult with a lawyer. Photo by Andy on Flickr.
Prepare a Living Will and Designate a Medical Power of Attorney
Every state has different paperwork for your living will, and different guidelines (you can grab paperwork specific to your state here). Essentially, each form allows you to designate what type of medical care you want to receive if you can’t speak for yourself, as well as designate if you want to donate any of your organs to science. Again, you’ll usually need two witnesses when you sign, and it’s wise to get it stamped by a notary. When you’re finished, keep a copy for yourself, and give copies to your physician, a family member, and your healthcare agent (your lawyer will also keep one if you use one). Additionally, if you do not want CPR or ACLS, you want to fill out a Do Not Resuscitate order with your doctor.
Not every medical procedure known to man is covered in the living will, and for those unexpected occurrences you may also want to designate a medical power of attorney (also known as an agent, attorney-in-fact, health care proxy, or health care surrogate depending on where you live). This person can make medical choices for you if they’re not included on your living will, or if you give them the power to override your previous choices if the circumstance warrants it. Additionally, they can also get the right to see your medical records (which is helpful if you choose anyone other than direct family), apply for Medicare on your behalf, and make choices about any medical procedures when you can’t. Again, this differs by state, but you’ll often name a medical power of attorney on your living will. Of course, before you give someone the power of attorney you’ll want to go over what type of medical treatments you want and don’t want, and make sure they agree to follow your wishes.
The living will and health care power of attorney forms are important for everyone to fill out. I did mine in about 10 minutes. With these completed, you’ll have the peace of mind that you’ll get the medical care you want (or don’t want) in just about every circumstance. Again, a lawyer is helpful here if you’re unclear about anything. If you’re not sure what type of treatments you’d like when you’re incapacitated you should speak with your doctor. Photo by Social Innovation Camp.
Organize Your Finances, Life Insurance, Bills, Debts, and Everything Else
While the bulk of your assets are distributed on your will, you still have a lot of financial obligations out in the world. Naming an executor on your will and a power of attorney is just one step. You’ve probably already done this, but it’s also important to get all your finances organized so your heirs can actually find what they need. According to the National Association of Unclaimed Property, around $32.9 billion assets are currently unclaimed because the state took hold of them instead of the family. So, whether you decide to write up your will with an estate planner or not, you still need to get everything in order.
Two of the most important documents are your life insurance policy (especially policies from former employers) and retirement plans (as well as pensions and annuities), because both are easy to overlook. If your heirs don’t know these accounts and policies exist, they can’t claim them and the funds usually go to the state. So, gather up your various policies and keep them together.
If you don’t have a life insurance policy, you might want to get one, and we’ve walked you through what you need before. A life insurance policy isn’t just about covering your salary after you die, it’s about helping your family pay for funeral costs, car loans, credit cards, mortgages, and everything else.
To make the process easier on your family when you pass away, it’s also a good idea to gather together all your debts (especially big ones like your mortgage, car loans, or credit cards) in one place so your heirs can pay your bills for you while they figure everything else out. You likely already do this, but it’s good to keep everything together so they don’t have to search for it. To make the process even easier (and skip over any conflicts with power of attorney), you can add a family member to at least one of your bank accounts so they always have access to some of your funds.
If you have a lot of sources of income, it’s a good idea to meet with a financial advisor to get everything organized. You can find one through The National Association of Personal Financial Advisors. With your financial advisor you can set up beneficiaries for retirement plans, make your accounts accessible, and create spending plans for your surviving family.
Secure Your Digital Life (and Pass the Keys onto Someone You Trust)
The reason this is an important step is not just to give your heirs access to your bank accounts, it’s also so they can shut down services you don’t want around. For example, Facebook can memorialize your page if you want, but if you don’t want that digital record sticking around, you might make a request to your heirs to delete it outright. Likewise, if an heir wants access to your Google account and you don’t give them the password, they’ll need to provide a name, address, photo ID, email, and death certificate. Which is to say, it’s a lot easier for your family if you just give them your passwords.
So, when you’re putting together your list of usernames and passwords, include instructions for how you want those accounts handled, including if you want them to do anything specific with your home computer. It might seem a little weird, but if you want a little control over how your digital life is handled after you die, this is the only option. If you’re using a password manager like Lastpass then you can just look in your password vault for a full list of all your accounts and passwords. It only takes a couple of minutes to copy the ones that really matter.
Set Up a Master File of Everything
Once you have all your paperwork sorted, wills filled out, and everything else, it’s time to pack that all into master file you share with a close family member or friend. Remember, this includes everything about your life, so keep it in a safe place (or in a safe deposit box), and share it’s location with your family. After completing the steps above, you should have everything in order, but here’s what you should include (List culled together from UC Berkeley, The Wall Street Journal, and our own “In-Case-of Emergency” document):
Letter of instruction
Social security numbers/cards
Passports (numbers and expiration dates)
Driver’s licenses (number, expiration dates)
Names/address/telephone numbers of healthcare professionals
Healthcare proxies/living wills
Medications (dosages, name of prescribing physicians, pharmacy, address/telephone
Social worker or caseworker names and contact information
Passwords, web sites, and other digital information
Income sources (retirement and/or disability benefits, Social Security, etc.)
Financial assets (institution names, account numbers, address/telephone, form of ownership, current value) of cash, bank accounts, stocks, bonds, mutual funds, money market funds, retirement and pension plans, IRAs, annuities, life insurance
Real Estate (property addresses, location of deeds, form of ownership, current value)
Other assets (location of items/titles/documents/form of ownership, current value) including automobiles, boats, inheritances, precious gems, collectibles, household items, hidden valuables/items in storage, loans to family members/friends
Liabilities (Creditor institutions, address/telephone, approximate debt) of mortgages, personal loans, credit cards, notes, IOUs, other).
While some of these records need to be physical copies (like your birth certificate), others, like contact info, a copy of your will, and property information can be digital, so use whatever system you’re more comfortable with. Whatever you decide, keep everything organized in a folder together, and let a family member know where everything is.
If you need a little help getting everything organized, webapps Everplans, Get Your Shit Together, and CNN’s guide to estate planning are great resources that guide you through more of the specifics. As always, if things get too complicated, don’t hesitate to contact an estate planner for help—most will offer you a free consultation.
Planning for control of your personal information after you die used to be as simple as telling someone about the desk drawer or the fireproof box or the safe deposit box at the local bank.
But in the era of smartphones and cloud computing services, that same stuff may be stored in digital formats on servers scattered across the globe. You may keep documents online or use email as a catchall for paperless receipts, insurance information or financial transactions. And don’t forget the photos, videos and musings left behind at social media sites like Facebook, Twitter, LinkedIn and Flickr.
So how do you make sure all that information — protected by who knows how many passwords — is handled the way you would like after you’re gone? Two words: Plan ahead.
Providers that store digital content are restricted in how they can disclose it to someone other than the account holder. Much of it is protected by privacy laws. And terms of service agreements for things like free email may prevent companies from disclosing that material to anyone without a court order.
“We are in a gray area right now where the technology has progressed faster than the laws,” said Laura E. Hoexter, an estate-planning lawyer at the law firm Helsell Fetterman in Seattle.
Some states have passed laws to address aspects of these issues. For example, a 2013 Virginia law makes it easier for family members to see content in cases of the death of a minor. And the Delaware Legislature just this week passed a bill that seeks to ease access to content.
The Uniform Law Commission, a nonprofit association that looks for ways to bring about uniformity in important areas of law, is also working on a law that could eventually apply to all states.
The commission wants to ease access to content while also honoring a user’s privacy wishes. It hopes all 50 states will adopt its proposal so a single set of guidelines would standardize the process for users, providers and heirs, said Suzanne Walsh, chairwoman of the committee drafting the law, called the Uniform Fiduciary Access to Digital Assets Act.
While the legal issues are being untangled you can plan ahead. Google, for example, offers a tool to help its users deal with the problem. Called Inactive Account Manager, it allows you to designate up to 10 people to receive content from sources like your mail, documents or blogs. You may also choose to have content deleted after you have died.
When the account becomes inactive, your designees are notified and receive the content you chose to share. They do not receive a means of logging in to your account.
Some lawyers view Google’s planning tool as a model to emulate.
“Other companies haven’t started doing this yet, but I’m hopeful they will,” said James D. Lamm, an estate-planning lawyer at Gray Plant Mooty, a law firm in Minneapolis and the author of digitalpassing.com, a blog that tracks these issues.
And if companies aren’t doing this for you, one of the surest ways to pass on content is to keep copies on your computer. You can make a habit of saving copies of important documents, sentimental photos, Facebook content or purchased content like music. One handy tool to capture web content is called ScrapBook, a free Firefox extension created by Taiga Gomibuchi, a programmer in Tokyo.
But if you download, make sure your material is secure. That means backing up to an external drive with programs like Apple’s Time Machine, or File History in Windows 8. Also, encrypt your computer’s disk and the backup drive. And if you share a computer, make sure your private content is secure, because another user with administrator rights may have access. Programs like 7-Zip can pack away confidential files in encrypted archives.
Some lawyers suggest including a digital executor in your will. This person is responsible for carrying out your wishes for your online content. This is no guarantee the content will be disclosed, they said, but it may help if laws eventually change.
“What would you want them to do if you were allowed to do it?” Ms. Hoexter said. This strategy includes creating a list of your online accounts, with passwords included, she said, and storing it where you can update it easily and your digital executor can find it.
Divulging your passwords is risky, of course, even to someone you trust. But there is no simple way to do this securely while ensuring your passwords are current.
Numerous online services offer features that can transfer passwords and other personal data after you die. PasswordBox, a password manager that hooks into your web browser, has a transfer feature called Legacy. SecureSafe, based in Zurich, offers a tool for transferring passwords.
Of course, putting information like that online exposes it to hackers, government snoops or even the unforeseen security bug.
Instead, you may choose to store passwords on your computer. Many programs are available, including Password Safe and KeePass. There are also encrypted portable devices like SplashID Key Safe. You can stash one in a fireproof box and give your master password to a friend or your lawyer.
The law may one day catch up with technology. But in the meantime, it’s wise to make sure you’re using technology to deal with the dilemmas technology has created.
It’s a tangled Web we leave when it comes to managing digital assets after death.
Email, blogs, financial accounts, Internet properties, files and social networks live on after we’re no longer physically here—and without the passwords, family and loved ones can be shut out from important information at a difficult time.
Identity thieves cause additional heartache by stealing personal information of the deceased and spamming friends and relatives. Nowhere is that more prevalent that on social networks. Friend requests and recommendations may be made to and from the deceased through automated programs, mutual friends or hackers. And while social networks have policies on deactivating accounts of the deceased, they usually require additional proof in the form of death certificates and published obituaries.
Increasingly, attorneys and estate planners recommend naming beneficiaries to one’s digital content, that is giving them access to log-in information, much like they would with bank accounts, stocks and safe deposit boxes.
Some survivors, at least on Facebook, create a “fan page” for friends to post photos and words of remembrance in memory of a loved one. But if deactivating accounts is your goal—and it’s the most secure method to prevent spam and possible hacking—here’s what you need to know:
Instead of allowing a family member to simply take control of a deceased user’s account, the largest social media website—with more than 1 billion users worldwide—lets them either memorialize or delete the account.
Memorialized accounts don’t accept new friends and, depending on privacy settings, allow only confirmed friends to visit the page to view photographs and leave posts of remembrance. Content that the deceased shared, such as photos or posts, remains visible to the audience it was previously shared with, but memorialized timelines don’t appear in People You May Know and other suggestions.
When closing the deceased’s account, proof of death is required, such as an obituary, news article or Internet link. Unlike other social media services, Facebook allows non-family members to perform this task.
To deactivate an account, Twitter says it will “work with a person authorized to act on the behalf of the estate or with a verified immediate family member of the deceased.” It requires, via mail or fax to 415-865-5405, the username on the account, a copy of the deceased user’s death certificate, a copy of the requester’s driver’s license or other government-issued ID, and other information, such as the relationship to the deceased. Family members can save a backup of the deceased’s Tweets.
Anyone, family or not, can request to delete the account of a deceased member. The process starts by answering questions on an online form signed electronically and providing proof of death—a death certificate, obituary, news article or Internet link.
Several months ago, Google launched an Inactive Account Manager feature that allows users to share information after they die on company sites including Gmail, Blogger, Picasa and YouTube. If there’s a period of inactivity, from three to 18 months, Google will first try to contact the account holders. If there’s no response, it alerts friends or family members who can access whatever personal data you granted.
To access or deactivate a deceased user’s account, an authorized representative of an estate must apply directly to Google. The process consists of two stages: First, reps must provide, by mail or fax to 650-396-4502, their contact information and proof of identity, along with the deceased’s death certificate and Gmail address. Then, after what may take months, properly vetted reps must provide additional legal documents, including an order from a U.S. court.
You are likely reading this via your e-mail or online via the World Wide Web. You may also access your bank accounts and credit cards as well as Amazon, PayPal, etc. via the internet. Many of you post to Facebook, Twitter, LinkedIn or Pinterest to name a few. If you have digital pictures or you back up your smartphones, this is all done online. You may even store important data files online at sites such as Carbonite. For many of us, more and more of our lives take place in an online, digital world. Our digital “footprint” grows larger all the time whether we realize it or not. But what happens to all of this when you are gone? How do your heirs access your important files and accounts? What kind of value does this have? Should this all be preserved or disposed? In today’s world, your online legacy can really become a tangled web.
Traditional estate planning very rarely gets into this topic and most people don’t consider the immortality of our digital footprint. However, with the online world becoming such a big part of many or our lives, we need to plan for this along with everything else in our estate. Experts say it is now essential to include provisions in your wills and powers of attorney outlining how to access and dispose, of digital assets such as photos, e-mails and online presence on sites such as Facebook and LinkedIn. If you conduct virtually all of your transactions online, it might be hard for your executor to find all of your accounts, assets and outstanding bills.
Survivors need to be able to access online accounts and e-mail and will need to know which sites you frequented, along with the user names and passwords to gain access to these sites. This information is being referred to as a “Cyber Will”. A “Cyber Will” identifies an online executor whose responsibility it is to access and shut down a decedent’s social media, e-mail, blogs, online accounts, etc. This “Cyber Will” is not really a legal instrument but provides the instructions, user names and passwords to family and friends for dealing with your online accounts. The goal is to ensure that the deceased’s online assets can be accessed and that the content is handled in accordance with the wishes of that person.
Documenting how to access accounts is extremely important. Without a username or password, it can take months or longer to access accounts and many large firms are reluctant to grant access to anyone other than the original user. (Password management sounds like a great idea for a future article) This information can be written and shared with the attorney, executor or other family members, or kept in a safe deposit box. One place you DO NOT want to put it, though, is in your will. Since a will is a public document, you DO NOT want this information included where everyone can see it.
Digital assets such as music and books that reside online are usually not allowed to be passed from the deceased to their heirs. Most commercial sites such as Apple, Amazon, Yahoo, etc. only allow the license to these items to exist with the person who bought it. Since everyone reads all the lines in those “Terms of Service Agreements” before clicking “Accept” we all know this already. This purchased content from iTunes and places like Amazon’s Kindle is fiercely protected by these companies as individuals buying media online are not granted actual ownership but are leasing the materials for the rest of their lives.
There are some companies that have sprung up in the last few years to take advantage of the demand for online estate planning. They are considered digital estate management services and provide ways for storing passwords and providing instructions to loved ones on how to deal with their online assets. They may also offer services that destroy the online content that the person would like to have destroyed after their death. Legacy Locker (now known as PasswordBox) and SecureSafe are two of the more recognizable companies providing these services. These companies are also password management providers which provide ways to manage your growing password collection.
There are also smartphone apps such as “Deathswitch”, “My Last Wish”, and “If I Die” that allow the departed to let loved ones know about their final wishes and to send a message to loved ones after they are gone. These apps aren’t so much used for conveying user names and passwords, but more for leaving messages and instructions for survivors.
Getting back to Facebook accounts, nearly 400,000 Facebook users die each year, so Facebook now provides options for loved ones to either close accounts or memorialize the departed. Memorialized accounts can only be accessed by confirmed friends and family and they can leave messages in remembrance. The accounts can be left open indefinitely.
As you are preparing your estate plan or the next time you are updating your estate documents, it would be a good idea to discuss the concept of a “Cyber will” with your attorney. You should consider including provisions in your wills, powers of attorney, and revocable living trusts that authorize your executors access to your online accounts. Or you may want to consider one of the services such as PasswordBox or SecureSafe to help with this. It can save your heirs many hours of toil and trouble and help ensure that your valuable digital assets aren’t just locked in cyberspace forever without access by your loved ones.