There’s no denying that the internet is here to stay. Twenty-five years ago, the internet was just a baby, but now, it’s a huge part of people’s lives. In fact, according to the Pew Research Center , approximately 81% of Americans go online daily. That’s huge! We now do […]
Dangers of do-it-yourself estate planning
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In response to COVID-19, financial services firms and online companies are offering a variety of self-made digital estate plans. These low-cost plans entice anxious families to explore these options in an effort to avoid the expense of an attorney. Not everyone has the ability to correctly prepare their own documents even with the convenience of the templates offered online. Others, who try on their own, could create problems rather than solutions. It is not easy to correctly prepare estate planning documents without the aid of an attorney, but it is easy to make significant mistakes which can be costly to correct or cause irreparable damage.
One of the most common mistakes involves the misinterpretation and misunderstanding of legal terms and their significance in legal documents. What is “issue”? What are “heirs at law”? What do “per capita” and “per stirpes” mean? Oftentimes, incorrect assumptions are made about the meaning of these words and others or they are ignored and dismissed as “legal jargon”, inadvertently leading to an estate plan contrary to the intent of the grantor or testator, such as leaving assets to unintended beneficiaries.
In like manner, the disinheritance clause and no-contest clause, while often very important, are frequently misconstrued. Additionally, in self-drafted documents, the language explaining why certain people are not included is absent, consequently increasing the chances of litigation after the grantor’s or testator’s death.
Similarly, the language used by online companies or clients themselves is often vague and unclear, resulting in unnecessary conflict and, frequently, in litigation that was intended to be avoided and could have been avoided if the estate planning documents were correctly drafted by an attorney in the first place. Likewise, a failure to tailor the estate plan in accordance with the particular state’s laws can lead to mistakes and unintended financial and personal consequences.
It is not uncommon that online or self-drafted documents fail to appreciate the various tax implications involved in a client’s estate or fail to consider all the issues associated with minor beneficiaries. Also, frequently, while changing a provision in a document, a change is implanted only in one part of the document, leaving other parts of the document impacted by this change unrevised and, subsequently, creating several probable interpretations and questions about the grantor’s or testator’s intent.
Online estate plans rarely contain all the documents that constitute a comprehensive estate planning portfolio. Similarly, it is very easy for an individual to fail to appreciate the role of each separate document and their importance and relevance in each specific case. For example, an online trust document might be missing a property schedule or the health power of attorney might not contain all of the individual’s wishes and desires.
Lastly, the online or self-execution of the estate planning documents often occurs without observing legal formalities such as notarization and the presence of competent witnesses. This absence of legal formalities consequently creates an invalid and inoperative document.
In today’s world, it is tempting to prepare an estate planning portfolio yourself or online. Be aware that by doing so, you might be creating more complications than resolutions. It is worth it to get your estate plan done right the first time by an attorney.
Pass Down Digital Assets, Including Cryptocurrency and Family Memories, Through Your Estate Plan What happens to your digital assets at death? Who can access your online data when you are incapacitated? Digital estate planning allows you to protect your online accounts, digital currencies, photos and other properties stored digitally. […]
Ask Kip: Create a digital estate plan
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A: What will happen to these online accounts after your death depends on the laws in your state, the types of accounts involved and the terms of service governing the accounts. An executor does not automatically gain access to the accounts unless the deceased person has made specific arrangements. And heirs often find that they don’t have clear authority to access or manage a family member’s accounts. But you can take steps to increase the likelihood that your digital footprint will be handled according to your wishes.
You’ll need to make a list of what you have, name someone to act on your behalf, and provide your designee with access and instructions. Start by creating an inventory of your digital assets, including all of your online accounts. As you create a list of the accounts and their passwords, note your wishes or instructions for any you would like handled in a specific way. For example, you may request that your social media accounts be deleted or that digital photos stored in the cloud be shared with specific people.
Problems may still arise. Passwords expire, people forget to update their lists, and many sites require two-factor authentication that could go to a cell phone or email address that is no longer accessible, says Sharon Hartung, author of Your Digital Undertaker. Or a website’s terms of service agreement may prohibit anyone other than the original user from accessing the account. Many sites delete accounts upon receiving notice that a user has died.
In recent years, most states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act, which allows you to designate a legal representative to access your digital assets after death. You can provide that access through a will, power of attorney or trust.
A small but growing number of online services have started to offer users a way to allow access to their accounts after they die. Facebook, for example, allows users to have their accounts deleted upon death or to designate a digital heir with the right to manage portions of the account, which will be turned into a memorial page. Google will let you select up to 10 trusted contacts who can access your Gmail, photos and more if your account is inactive for several months.
(Kaitlin Pitsker is an associate editor at Kiplinger’s Personal Finance magazine. Send your questions and comments to firstname.lastname@example.org. And for more on this and similar money topics, visit Kiplinger.com.)