Category: Digital Assets

7. Download our FREE Estate Planning Guide

Eleanore

Download our FREE Estate Planning Guide

Click here to view original web page at 7. Download our FREE Estate Planning Guide

What a strange time to be alive.

Some people have been in quarantine for nearly two months, while others are still adjusting after “only” (those are sarcastic quotation marks) a few weeks in isolation.

No matter which way you slice it, Coronavirus (COVID-19) has affected all of us.

I’ve talked with a lot of people over the past month who desperately want to create or update their estate plans to deal with Coronavirus but who don’t want to go to an attorney’s office.

Although I have written before about the dangers of “Do It Yourself” estate planning, here are 7 things you can do during quarantine to organize your affairs WITHOUT needing to leave home:

1. Draft a letter of instruction.

If you died today, would your representatives know how to settle your estate?

The purpose of an estate planning letter of instruction is to provide information to help guide your loved ones or other representatives through the process of settling your affairs.

I’m not talking about advice regarding probate or other legal matters. I’m talking about information that isn’t included in any of the documents you will get from an attorney.

A letter of instruction can answer questions such as:

  • Who should be notified of your death?
  • How can your family claim benefits under a life insurance policy?
  • What information is needed to obtain retirement benefits?
  • Who is your lawyer? financial advisor? CPA? insurance agent?
  • What subscriptions should be canceled after your death?
  • Where is the key to your safe deposit box?
  • How should your representative dispose of your personal effects and belongings?
  • Etc., etc., etc.

Imagine that you could stand over the shoulders of your representatives and tell them exactly what needs to be done to settle your estate. That’s how you should approach your letter of instruction.

For more ideas, read my article about writing an estate planning letter of instruction.

2. Review beneficiary designations.

When did your last review the beneficiaries named on your IRA, 401(k), or insurance policies?

This is very easy to do while you are stuck at home. And it can avoid a lot of trouble.

Failing to review your beneficiary designations — and to coordinate them with your estate plan — can lead to unintended, even disastrous consequences. Consider these examples:

Example 1: Your son James is designated as the beneficiary on your life insurance policy. Sadly, however, James dies before you and you forget ti name a replacement beneficiary. If you die without a living beneficiary named, then that policy may need to be probated.

Example 2: After your first child, Mary, is born, you purchase a $1 million life insurance policy and name her as the beneficiary. Several years later you have another child, Sam, and decide to make a Will leaving everything equally to your two children. But if you don’t add Sam as a beneficiary on the life insurance policy, Mary will get $1 million more than Sam after your death.

Example 3: Your IRA lists your two kids, Jack and Jill, as beneficiaries. But then you and Jill have a falling out, so you make a Trust that says Jill gets nothing. Unless you remove Jill as a beneficiary on the IRA, then she will still get half of the IRA after your death — regardless of what the Trust says.

I could list a dozen other examples, but they all speak to the same point: It is crucial that you regularly review and, if necessary, update the beneficiaries named on your assets.

Just remember: beneficiary designations can override the terms of your estate plan.

So before making any changes, read this article about mistakes to avoid when naming beneficiaries.

Additionally, I suggest consulting with your estate planning attorney and/or your financial advisor when changing beneficiaries to make sure the change won’t have any undesirable effects.

3. Inventory your assets.

When you die, how will your representatives know where all your “stuff” is?

Your family may know where you bank or what cars you have, but do they know the legal description of your mineral rights? Whether you have a prepaid funeral plan? Who manages your IRA or 401(k)?

To help your representatives, make an inventory of your assets including:

  • A description of the asset (e.g., the year, make, model, and VIN for a car)
  • Where the asset is located (e.g., at which bank an account is held)
  • Information needed to access the asset (e.g., a password or other security information)
  • Where the title, if any, can be found (e.g., where do you keep the deed to your house?)
  • An approximate or best-guess value of the asset
  • Any other information you think is relevant.

Making an inventory is one of the easiest items on this list. The key is simply to update it regularly.

Remember, however, that an inventory will NOT convey those assets to the persons you want to have them. It is for reference only and is not a substitute for a Will or a Trust.

4. Create a digital estate plan.

You have digital assets, even if you don’t realize it.

There are a lot of definitions of “digital assets” out there, but it includes basically everything you have that is stored online or in digital or electronic form: social media accounts, photos, computer documents, email accounts, domain names, ebooks, music, apps, etc.

And like other assets, something has to happen to your digital assets after your death. So ask yourself:

  • What will happen to your Facebook account after your die?
  • Will your photos on Flickr or Instagram be deleted?
  • Can someone save your family videos from a private YouTube channel?
  • How can you make sure someone inherits your Bitcoin?
  • Who gets control of your e-mail account?

The answer to all of these questions depends on your digital estate plan.

Although some aspects of digital estate planning must be included or authorized in a Will or Trust, there are a lot of things you can do on your own while in quarantine.

Read my 5 tips on how to create a digital estate plan for more information.

5. Organize your business information.

An estate plan for an entrepreneur or business owner should include another dimension: instructions for the management or winding up of your business after your death.

Often, only one member of the family understands the operations and finances of a family business.

But what happens when that family member dies?

Even if you have talked with a child or other relative about running the business, it is still overwhelming for that person to take over the business when he cannot find all the information that he needs.

You can make that transition much easier by organizing your business information in one place.

Think of this document like the business version of the personal letter of instruction explained above. What information (e.g., tax, utility, subscriptions or services) would someone need to know to run the business?

You can take things a step further by creating a business succession plan to make the legal transition of the business after your death a lot smoother.

But unlike the other items in this list, I highly recommend that a succession plan be prepared by or with the advice of an attorney. So maybe wait until after quarantine for that part.

6. Conduct a “fire drill”

A letter of instruction is great, but writing is sometimes vague and things often get lost in translation.

That is why you should also conduct an estate planning “fire drill.”

Just as fire drills in school let you know what to do in the event of a fire, an estate planning fire drill is meant to let your family know what to do after your death.

To hold an estate planning fire drill, walk your family through the process of everything they must do to set your affairs in order after you have died.

Yes, it’s a morbid way to spend time with family.

But it makes administering your estate so much easier on your loved ones after your death. Because even though they will be grieving, they will at least know what to do.

For ideas about what to discuss with your family, read our post on holding an estate planning fire drill.

7. Download our FREE Estate Planning Guide

Education is crucial in estate planning.

At Postic & Bates, we strive to help our clients understand all of the estate planning options available to them and what their documents mean.

But you can also educate yourself.

That’s why we created a 60+ page guide full of detailed information about estate planning.

Simply click the button below to get your FREE copy of our Estate Planning Guide:

Consult with an estate planning attorney

There’s no time like the present to tackle the tasks discussed above, especially when you’re trapped at home in quarantine and really don’t have any other choice…

However, just because you can do something by yourself doesn’t mean you will do it correctly or that the things you do will not have unintended consequences on the rest of your estate plan.

To consult with a legal professional about the issues discussed above — or to discuss creating or updating your estate plan — contact the experienced Oklahoma City estate planning attorneys at Postic & Bates for a free, no-obligation telephone consultation by clicking the button below.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

Do You Really Know Why Digital Legacy Planning Matters To You?

Do You Really Know Why Digital Legacy Planning Matters To You?

Eleanore

Do You Really Know Why Digital Legacy Planning Matters To You?

Click here to view original web page at Do You Really Know Why Digital Legacy Planning Matters To You?

“All photographs are memento mori. To take a photograph is to participate in another person’s (or thing’s) mortality, vulnerability, mutability. Precisely by slicing out this moment and freezing it, all photographs testify to time’s relentless melt.”

— Susan Sontag

In the event of a house fire, what would you take with you? The standard answer used to be photograph albums. Why? Photos can remind us of our human mortality. We can look at faded images of those we have loved in the past and they can live again in our minds.

In the present, we can hold tightly on to rich memories of our life through vivid images in our minds that can never be taken away. Now, if you close your eyes, you could bring to remembrance one of those special times.

Savour it.

Our memories today are mostly digital representations of those beautiful moments. We snap the sunset on that unforgettable holiday, the last birthday party for Grandpa or the birth of our first child. Photographic repesentations of mortality.

Snap. Snap. Snap.

Digital memories stored for future recollections. A legacy created over a lifetime. Our life story in photographs and video. Never in history has it been so easy to record our lives.

Those digital memories are priceless. Irreplaceable.

WHAT IF YOUR MEMORIES ARE LOCKED AWAY AND NO KEY IS AVAILABLE?

What happens when those memories are locked away and no longer accessible? Worse it could be those precious memories of someone you love. It could be they are a few clicks of a keyboard from access. But, they might as well be on another planet for all the admittance you can get to them?

THE LOSS OF A SON

Morgan Hehir was attacked and killed on a night out in Nuneaton in Warwickshire, UK. He and his friends were on their way to a Halloween party on 31st October 2015. Morgan was only 20. It is hard to comprehend what loss like that must be to experience as a parent.

Morgan was an aspiring musician. Now his family wants to access the music, memories and pictures on the Mac computer he owned. However, they are locked out by a password they do not know.

He dad, Colin said recently in an article in The Telegraph, “He sent snapshots of his music and him messing around with his friends; he would send them little skits, so we know there is music on there as well as his photos, it’s all on this Macbook.”

LOCKED OUT? — A COURT ORDER IS THE KEY

Colin Hehir contacted Apple asking for help. They acknowledge the sheer difficulty and sadness of the situation. However, Apple says his parents need to get a court order to access songs written by their 20-year-old son stored on his computer.

An Apple spokesman said in a statement given to the BBC: “In the absence of permission for third-party access to an account, it is impossible to be certain what access the user would have wanted, and we do not consider it is appropriate that Apple make the decision.

Too right! It is not Apple’s position to unlock a computer. I don’t think they should make data freely available that doesn’t belong to them. Even, I believe, if they have a court order. Maybe the son would not want his parents to access that data? Who knows? The sad outcome is stress, heartache, and pain for the parents. Sad, when their grief is raw and daily present reality. My heart and sympathy go out to his parents. It is a tragic situation.

This is not an isolated case. The FBI were fighting through the courts for Apple to unlock the iPhone of a terrorist. In the end, they went elsewhere to access it. However, even that debate is still raging. Moreover, it will continue.

WHO OWNS YOUR DIGITAL LEGACY?

“We’re only asking for our data, that these companies are protecting for us. Morgan owns the computer; Morgan owns the data, but Apple owns the access. It’s so frustrating.” Said Colin Hehir. Going on he poignantly comments.

“It essentially means if you store everything on your computer, you lose your history and memories.”

That is true. True, unless you take steps and encourage those that you love to take to create a digital legacy plan. A plan that involves sharing passwords to your digital memories.

UNLOCKING THE MEMORIES CAN BE EASY

Do have priceless memories held on digital devices?

Are those devices password protected?

Whom have you told what that password is?

Digital legacy planning is still in its infancy. It needs to become part of standard estate planning. “I do not need a will, I do not have anything to leave,” is a common thread I hear. However, one sad lesson from this tragic story is in this digital age our priceless memories held in millions of pixels are acres of diamonds in the ground. Take steps to protect them.

If you are interested in knowing how you can take action to protect your digital legacy, then contact me. Let me guide you forward in that process.

Florida Bill Would Let You Hand Off Your Facebook and Twitter Accounts After You Die

Florida Bill Would Let You Hand Off Your Facebook and Twitter Accounts After You Die

Eleanore
Florida Bill Would Let You Hand Off Your Facebook and Twitter Accounts After You Die

Who gets control of your selfies when you die? Who can be entrusted with deleting your problematic tweets when you kick the bucket? Who gets access to your Facebook account? Well, the law is murky, but a bill flying through the state Legislature would clarify the matter in Florida.

State Sen. Dorothy L. Hukill’s SB 494 would allow people to clarify who can have access to their digital accounts once they pass on. It would allow Floridians, either through a will or an online tool, to specify who gets control of their internet accounts. The terms of service of many online services specify that only the original creator of the account can access it, with no exceptions.

Social media sites’ policies on what to do with an account after a user passes can vary greatly.

A similar bill failed to pass last year after internet service providers feared it would violate their users’ privacy. The newly revised bill eases those concerns by requiring people to specifically leave instructions behind.

The bill can be applied to everything from social media accounts like Twitter and Instagram to email and online bank accounts. People would also be able to spell out exactly what the custodians of their accounts are allowed to do with the information.

Hukill, in her private sector job, is an attorney specializing in estate planning. Eight other states have passed similar bills.

Today the bill passed unanimously in the Senate, 36-0. A House version has passed three committees without much opposition and has been placed on the calendar to be voted on by the entire House.

Challenges Facing Your Digital Estate

David

Since 2003, we have seen a significant shift in how our information is stored, delivered, and used.  In the past I used to advise clients to look in the mailbox for bills and statements to locate the assets of a deceased loved one. Now, in 2016, the mailbox is electronic and the bills, statements, and other notifications are getting to be all digital. We are seeing our lives transitioning to the internet “cloud” every day.  Regardless of how much we like it, or how comfortable we are with it, our lives tomorrow will be different that they are today.

This evolution in how we do what we do is causing, for some of us, a disconnect in how we see our world.  What used to be obvious is now more subtle; what used to be challenging is now easier.  And because of these changes, we take so much more for granted. Those pictures taken of uncle bob and his kids on Instagram; the documents received from a colleague stored on Dropbox; the credit card bill from Netflix; the invoice of your personal items from Amazon; the profile of you on LinkedIn; remember that payment via bitcoin or PayPal?; and don’t forget your timeline on Facebook. The technological changes we have been experiencing have enabled us to leave an imprint of our lives online in so many ways.  And whilst this is nice and it certainly is easy, the question that few are looking at is what happens to these digital ghosts of our lives after we have passed away?

Last year, in 2015, there were approximately 83 million Americans who had atleast one of their online accounts hacked if we look at just the top four hacks of the year[1]. About 80%[2] of all people who pass away in the United States have online accounts of one sort. As time goes on, that number will only increase, as the Gallup pollclearly shows. Of course, the more we go online, the greater the threats from hacks, ID theft, misappropriation of information, and con-artists absconding with ill-gotten funds. One personal anecdote I can share is that of a childhood friend of mine who passed away leaving behind an infant daughter. A miscreant posted on her Facebook page a link to have the friends and family donate money for a “charity” for the benefit of the child. After a time, those funds were collected and the person disappeared into the ether. This is just one case of many where people are abused during a time of emotional stress.

Several challenges face those survivors acting as representatives of the deceased when it comes to closing or accessing the still active accounts of the deceased. First, identifying the active accounts may be an issue if no inventory is left in place. Second, the representative has to have the time to navigate the web sites of these accounts to even determine who to contact or what form to complete so that the account can be closed. Sometimes these accounts may need to be accessed rather than closed, and that’s another significant matter that will be discussed below. Third, not every online account will require the same information to close such the account. For example, while Facebook may simply require proof that the person seeking to close an account is an immediate family member, LinkedIn requires the member’s name, your relationship to them, the company they worked for, a link to the profile, and the member’s email address; just to cite two examples.

As the internet ages with us, a critical mass is developing in the legal community and state legislatures to better help the representatives of the deceased to handle these online accounts. A national framework called the Revised Uniform Access to Digital Assets Act (RUFADDA) has been drafted to enable access and closure to these accounts. The difficult path that lies ahead is in having all states enact laws within their own legislatures that will ratify the RUFADDA. At present about 54%[1] of the states have begun the process of introducing legislation dealing with this. Florida is set to put into law it’s version this July. We can’t forget though that while the United States created the internet, it is worldwide, as are people’s accounts. So while our nation is slowly making strides, many online providers have no process or legal structures in place to allow for the living to handle their loved one’s accounts.

Further, and as I alluded to earlier, there is a bright line that cannot be crossed when dealing with the accounts. Accessing an account requires prior consent from the account owner. When was the last time you completed a form allowing your representative to access your email account.  Most likely, the answer is “never.” Here, the Stored Communications Act (SCA) and the Federal Computer Fraud and Abuse Act (FCFAA), actively prevent any unauthorized person from accessing such accounts. Doing so opens the door for civil and criminal penalties against the online account provider and yourself, if you were to access your loved one’s email, for example.

When examining the upcoming legal structure of the states’ work, it is very important to understand that the deceased’s digital assets are exactly that – assets. They must be dealt with in the same way a person’s other assets are handled, and that is by using a durable power of attorney or guardianship while a person is alive, but incapacitated, and through a person’s Last  Will or Trust when deceased. This will necessitate a court supervised administration of the estate to deal with the digital estate even if a person had no others financial assets to speak of.

There are things that can be done. First and foremost, speak to an attorney who is versed in digital estate management and who has the understanding and capability to ensure your legal estate documents are up to the future task of providing the prior consent required. Next, work with certain online companies like EstatePass.com to safeguard your information while living and will ensure your and your future representative’s legal rights are protected by having the prior consent on file, or if dealing with the accounts of a deceased loved one, EstatePass.com will provide a simple online tool to help you close the necessary accounts. Remember: simply having a list of accounts and passwords does not protect your rights or give a representative the authority to access these accounts.

[1] Vtech – 5M, 11/2015; Ashley Madison – 37M, 8/15; Office of Personnel Management – 22M, 7/15; Anthem – 18.8M 2/15

[2] http://www.census.gov/content/dam/Census/library/publications/2014/acs/acs-28.pdf

[3] Who Will Delete You? Fiduciary Access to Digital Asset, ActionLine Vol. XXXVII, No. 2 (Winter 2015)

How to Protect your Blog’s Assets

How to Protect your Blog’s Assets

Eleanore
This is a guest post by John Corcoran from California Law Report. John is a lawyer and blogger who understands that there are a lot of people who blog and do business online who don’t take the necessary precautions to legally protect themselves and the assets that they’ve created. Although laws differ depending on where you live or where your business resides, this is really important advice – and probably a reminder to a lot of you who have been meaning to take action, but have yet to do so.

Even though John is a lawyer, he is probably not your lawyer (if he is, then that’s cool!), so before you decide to take action based on the information presented in this post, it is recommended that you first consult with your own attorney.

I, of course, am not a lawyer.

Cheers, and here’s John:

Pat recently wrote a post on The Dark Side of Successful Blogging in which he explained the many negatives he has had to deal with as SPI has experienced explosive growth over the past less than three years.

Just like any successful business, successful bloggers experience growing pains as they begin to gain a following. Usually success means outgrowing an original hosting provider or email marketing provider, as well as countless themes, plugins, affiliates, and maybe even phone systems or office space.

What successful bloggers usually don’t realize as they are building a following and watching their income grow each day is that along the way, they’ve built some major assets which need guarding and protection. The domain, the blog itself, the brand, even a Twitter account with substantial followers can all quickly become extremely valuable assets. And on the list of “to do” items, I’m willing to bet that setting up legal protections to guard blog assets falls pretty far down on the list.

If you haven’t already, you should be thinking now about how you can legally protect yourself and the valuable assets you have created.

You could be sued by an affiliate who claims they are owed thousands in unpaid commissions, or by another blogger who claims you stole their “idea.” No matter the dispute, if you leave yourself exposed, your hard work could go down in flames.

You wouldn’t buy a $100,000 condo without really protecting yourself from losing it (such as by purchasing insurance), yet some bloggers build a $100,000 blog without building adequate protections. Personally, I think that’s nuts.

Of course, every blogger’s life situation is different, and the laws will be different depending on where you live. But there are certain similarities and principles which are universal when it comes to setting up a legal structure to protect your interests wherever you live.

You will also need to decide when your growth is significant enough to justify the significant contribution of time, energy and money to separate all of the business of your blog into a new separate legal entity.

How to Form a Legal Business for Your Blog

The first step is you should form a separate legal entity, owned by you, which “houses” all of your blog’s assets. Every state and country has different laws and names for this particular legal entity, but in California, where I practice law, the best entity is a Limited Liability Company (LLC). The LLC may go by another name depending on where you live.

Why should you choose to form a LLC instead of a corporation?

A LLC is a highly flexible and customizable legal entity that gives you the peace of mind of knowing you are protecting your assets without throwing up burdensome legal barriers and maintenance requirements. A LLC is generally easier to set up, cheaper, and more flexible with fewer formal requirements than a corporation.  On the other hand, a corporation does have certain advantages, namely that it can take on investors (shareholders) who have limited liability for the corporation’s debts or actions. In most cases, the advantages of forming a corporation are outweighed by the increased burdens which corporate formalities bring — especially given that most bloggers don’t need to bring on investors.

Pat previously wrote a guide on how he set up the LLC for his blog which you can follow.

If you have business partners for your blog, then you will also need to prepare an Operating Agreement. The Operating Agreement spells out the nuts and bolts of the business; it is the “Constitution” which guides the business.

If one of you is going to handle 90% of the writing and the other is going to handle 100% of the affiliate programs but you’re going to split the profits 50/50, then you should put that in the Operating Agreement.

If you are a single blogger and don’t have any partners for your LLC, then you do not absolutely have to have an Operating Agreement. However, if you have one or more partner, you should definitely have an Operating Agreement, and I recommend you spend some time hammering out the details. Although companies like LegalZoom will provide you with a boilerplate Operating Agreement, you and your partners should consider customizing it or hiring an attorney to do so.

Use the Legal Entity For All Business Matters

The second step is you need to use the legal entity of your choice religiously for transacting all business related to your blog. Simply creating the LLC doesn’t waive a magic wand which will protect you and your assets from any harm.

The number one problem with LLCs isn’t that people don’t set up a LLC to begin with; it’s that people set up an LLC and then don’t use it. They commingle their business funds with their personal funds in one checking account. They don’t sign contracts in the name of the LLC. They don’t purchase goods in the name of the LLC.

They might as well have never formed the LLC, because the LLC can’t protect you from liability if you use your own personal name to conduct business.

It’s like buying a bulletproof vest and then leaving it hung up in your closet. It can’t do you any good unless you use it.

You need to transfer all blog business-related assets like domain names and hosting accounts into the name of the LLC. The new legal entity will become the actual owner of the blog, but don’t worry – you will own the LLC so it won’t change your income or ownership rights. Your affiliate and sales income is treated the same way as it was previously – it is passed through to you.

You can change your domain name’s ownership registration with whoever you used to register your domain.

Here are links for how to change your domains with GoDaddy.com and with Bluehost.com.

Open a LLC Bank Account

The next step is to set up a separate bank account in the name of the LLC.  One of the most common problems with small business owners is that they commingle personal assets and business assets in one shared bank account. When you do that, you put yourself at risk that the LLC will be treated as if it was not a separate legal entity.

To avoid this problem, you should open a separate bank account in the name of the LLC and use it exclusively to pay bills such as for your hosting provider and to receive affiliate income and/or sales income.  You can then transfer the funds from the LLC’s account to your own personal account.

This extra step is crucial if you want to keep the LLC treated as a separate legal entity. If the blog is later sued for whatever reason, and you did commingle funds, your other personal assets could be at risk because a court might treat the LLC as just an extension of you personally.

Get a Federal Tax Identification Number (EIN)

If you are a resident of the U.S., the next step is to get yourself a state and federal Employer Identification Number (EIN). You can get your EIN electronically directly on the IRS website.

Set Aside Enough Money for Taxes

Finally, don’t forget to set aside enough money for taxes. Because LLCs pass through all income to its owners, it is the owner’s responsibility to pay income tax.

I hope the above tips don’t take too much of the “fun” out of building a successful blog, but I believe it’s much better to take a few hours to get all legal matters in order than to pay the consequences in the long run.

John Corcoran is a lawyer and blogger with California Law Report (www.calawreport.com). He lives in the San Francisco Bay Area. You can sign up for John Corcoran’s 10-part series on how to set up a business at his blog.