Prince’s death highlights importance of writing a Will

Prince’s death highlights importance of writing a Will

Prince

The death of the world famous popstar has shone a light on how important it is to have a Will in place says Hannah Blakey.

On 21 April 2016 the Queen celebrated her 90th birthday. A day of jubilation was planned, honouring the Queen’s life and her dedication to the Commonwealth and international affairs. On the day, however, it was the death of a Prince which shared the headlines alongside the life of a Queen.

For, also on 21 April, Prince, one of the twentieth century’s greatest musical artists, was found dead in a lift on his Paisley Park estate, near Minneapolis. In interviews with friends following his death, Prince has been described as healthy in his habits, tireless at work and an energetic creator who avoided alcohol and recreational drugs. His death has therefore left investigators and mourners alike grappling with how the musician’s life could have come to such a sudden end.

The unexpected nature of Prince’s death, tragically at the age of 57, alongside a flurry of other shocking celebrity deaths in 2016, exemplifies the importance of having appropriate estate planning in place. As it is never possible to know what is waiting around the next bend, preparation is vital.

On this side of the pond, the first step that all should take, once they are over eighteen, is putting in place a Will. By doing so, it is possible to avoid the inflexible intestacy rules that would otherwise apply, ensuring that you are in control of where your estate passes. Someone in the public eye, like Prince, should also prepare the Will with publicity in mind: a Will becomes public document after a person’s death. Including a trust or overriding power in a Will not only provides flexibility to adapt to whatever the future holds (a key consideration when you are putting a Will in place which is unlikely to be needed for decades) but can also protect the identity of heirs.

A key element of putting in place a Will is considering who to appoint as executors of your estate. The executors are responsible for collecting in and distributing the estate of the person who has died in accordance with the terms of their Will. The role of an executor is one of great responsibility. It can also be an onerous job, so it is important to consider whether those chosen will have the time and abilities to take on the role, especially at what is likely to be a highly emotional period.

To aid your future executors, the Law Society’s Wills and Inheritance Quality Scheme Protocol recommends the completion and maintenance of a Personal Assets Log. By keeping an informal inventory of your assets (and storing important policy documents alongside this list), you will enable your executors to piece together more easily what you own (and if your executors are professionals, more cost-effectively).

In the technological age in which we live, it is vital that, in preparing this log, you consider leaving clear instructions about what should happen to social media, computer games and other online accounts after your death, as well as more tangible assets. Preparing a list of all your online accounts, such as email, banking, investments and social networking sites, will make it easier for executors to work out your digital legacy and adhere to your wishes. Leaving a list of accounts (rather than a list of passwords and PIN numbers) is preferable, as an executor accessing your account with passwords and PIN details could be committing a criminal offence under the Computer Misuse Act 1990.

With an estimated estate of £200 million, and with no living children or partner, it is not yet clear who will inherit Prince’s fortune or the rights to his music. Wherever his assets pass, it is undoubtable that Prince’s memory will live on through his innovative music that defined an era.

Preparing for the Oncoming RUFADAA Tsunami on Estate & Elder Law

As of this writing, 31 states in the union have either enacted or will be enacting legislation based on the Revised Uniform Fiduciary Access to Digital Assets Act of 2015 (RUFADAA[1]). The new legislation affects both regular folks, the end users (the “User”); and online providers alike. RUFADAA focuses directly on “Digital Assets,” meaning those assets not directly managed by typical fiduciary means such a Payable/Transfer on Death scenario. These assets include a myriad of items, from e-mails to information like documents, apps, music and multimedia, and financial data stored in the cloud or even on a local phone or computer. Unless and until the consequences of not handling such data is discussed during a planning session, few clients will comprehend the depth of the situation.

Once it is discussed, clients will recognize that this information, potentially valued in the thousands of dollars, let alone priceless sentimental value, will be unrecoverable upon incapacity or death of the User. Estate planners must recognize that absent the User’s designation via an “online tool,” as designated in the RUFADAA, it falls to the User’s Powers of Attorney, Last Will, Trust, or Letters of Guardianship to determine who will have the authority to access their Digital Assets and to what extent that access is permitted. The last resort will be an online provider’s (“Custodians”) End User License Agreements (EULA) which may not be so kind to the User.

A further challenge regarding the practicality of dealing with the Digital Assets is that each Custodian will have differing mechanisms for the incapacitated or deceased User’s representatives (the “Fiduciary”) to actually effect access or termination of the Digital Assets. During a time of strife, either in dealing with an identity theft or death, the Fiduciary will lack the time and willingness to deal with each individual Custodian on the Custodian’s terms, even if a Custodian’s online tool was utilized by the User. Only one service, EstatePass.com, owned by Obolus, LLC, has risen to the challenge of helping Fiduciaries navigate the modern complexities of dealing with Digital Assets. By simplifying the process of transferring or closing the Digital Assets of the incapacitated or deceased through a managed database of over 1,200 online service providers, Fiduciaries have a proven, easy to use process to handle Digital Assets.

Obolus has setup EstatePass to benefit both the Fiduciary and the User. The Fiduciary may choose to use EstatePass to access or close, depending on any pre-set authority, a User’s Digital Assets. The User can utilize EstatePass’s Digital Advance Directive service to automatically effect a transfer or closure of accounts upon the User’s notification of death.

RUFADAA forces the Custodians to a limit of 60 days to either permit a request to access or close the User’s Digital Asset. This in turn creates an implicit requirement for such Custodians to deal with the simple fact that their user accounts are just like any other account held by a financial institution in that the Custodians must provide a ready process to handle such requests. Most Custodians do not presently have policies in place, as the focus was on acquiring users, not what to do with the accounts when the User is no longer able to manage the account. A prime example of the growth of the online graveyards is Facebook, which has over 300,000 worldwide Users dying every month. With over 1.6 Billion “Users,” there’s no indication as to how many of those are of the living variety. Advertisers fly like moths to the flames toward social media companies with high user account numbers, without a thought of how many of those accounts are actually merely acting as a reminder of those who once were. Companies like Twitter cull their accounts after six months of inactivity, but other behemoths like Facebook, LinkedIn, and Pinterest never remove accounts until otherwise notified. Only now, with RUFADAA coming online, will Fiduciaries have a path to not only collect or close the Digital Assets of the deceased, but of making those social media environment more of a place for the living.

Obolus and its EstatePass service, like the Obol, from which its name is derived, will finally permit those Digital Assets that were until now forced to wander Digital realm for an eternity to be at peace with RUFADAA’s help.

[1] All terms in quotes are as defined by the RUFADAA.

 

David H. Slonim, Esq. is the CEO and Co-Founder of Obolus, LLC and Elder Law attorney based in Melbourne, FL.