It’s National Real Estate Planning Awareness Week, and financial experts say it’s more important than ever to get things in place with respect to your will in the digital age. Craig Bolanos, Founder and CEO Wealth Management Group At Inverness and Downers Grove, we attended ABC7 to explain what […]
8 Documents That Are Essential to Planning Your Estate
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If you want loved ones to remember you fondly, tackle your estate-planning tasks. Your heirs will thank you for not leaving a legal mess to sort out.
Many of us want to get going on this planning, but don’t know where to start. Here’s what you should know about eight documents that can help you get your affairs in order.
If that sounds like a lot of paperwork, don’t worry: You probably won’t need every document. And if you’re wondering where to find the documents you do need, not to worry: Just head to our partner Rocket Lawyer, where you’ll find everything you need cheap.
1. Last will and testament
A will gives you the power to decide what is in the best interests of your children and pets after you’re gone. It also can help you determine what will happen to possessions with financial or sentimental value. It typically names an executor — someone who will be in charge of following your directions. Finally, you can include any funeral provisions.
Use your will to name guardians for those under your care, including minor children and pets. Designate any assets you are leaving for their care.
If you’re married, your spouse needs a separate will, AARP says.
In the absence of a will, a probate court will name an executor — typically a spouse or grown child — for your estate. Probate proceedings are a matter of public record. So keep private information — passwords, for example — out of your will, as that information could become part of a public document.
2. Revocable living trust
A living trust is another tool for passing assets to heirs while avoiding potentially expensive and time-consuming probate court proceedings.
You name a trustee — perhaps a spouse, family member or attorney — to manage your property. Unlike a will, a trust can be used to distribute property now or after your death.
If you have substantial property or wealth, a trust can provide tax savings.
ElderLawAnswers further explains the differences between trusts and wills. Creating a trust is not a do-it-yourself project. Get an attorney’s help.
3. Beneficiary designations
When you purchase life insurance or open a retirement plan or bank account, you’re often asked to name a beneficiary, which is the person you want to inherit the proceeds when you die. These designations are powerful, and they take precedence over instructions in a will.
Keep beneficiary designation papers with your estate-planning documents. Review and update them as your life changes.
4. Durable power of attorney
This document allows you to choose someone to act on your behalf, financially and legally, in the event that you can’t make decisions.
Don’t put off this chore. You must be legally competent to assign this role to someone. Older people worried about relinquishing control sometimes put off the task until they are no longer legally competent to do it.
5. Health care power of attorney and living will
To ensure that someone can make medical decisions for you in the event you become incapacitated, establish a health care power of attorney — also called a durable health care power of attorney. This is different from the previously mentioned durable power of attorney for financial and legal affairs.
A living will lets you explain in advance of your death what types of care you do and do not want, in case you can’t communicate that in the future. It’s strictly a place to spell out your health care preferences and has no relation to a conventional will or living trust, which deals with property.
“You can use your living will to say as much or as little as you wish about the kind of health care you want to receive,” says legal site Nolo in a detailed article.
6. Provision for digital assets
Decide what to do with your digital assets, including your computer hard drive, digital photos, information stored in the cloud, and online accounts such as Facebook, Yahoo, Google and Twitter. Be sure to include a list of your passwords.
“What Happens to Your Email and Social Media After You Die?” explains how to make these decisions.
7. Letter of intent
For instructions, requests and important personal or financial information that don’t belong in your will, write a letter. Use it to convey your wishes for things you hope will be done. For example, you may have detailed instructions about how you want your funeral or memorial service to be performed.
No attorney is needed. The letter won’t carry the legal weight of a will.
8. List of important documents
Make certain your family knows where to find everything you’ve prepared. Make a list of documents, including where each is stored. Include papers for:
- Life insurance policies
- Pension or retirement accounts
- Bank accounts
- Divorce records
- Birth and adoption certificates
- Real estate deeds
- Stocks, bonds and mutual funds
Another item helpful for your heirs is a list of bills and accounts, including contact information and account numbers for each, so your representative can settle and close these accounts.
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You, Your Digital Assets and Planning Your Estate
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From assets like bitcoin to intellectual property like published articles or music, our personal assets are quickly moving beyond just physical properties like real estate to digital ones as we continue to increase our online activities. With social media giant Facebook looking to be saddled with more deceased user accounts than living by 2100, there is a need for any of us sharing photos with friends and family, publishing content, managing finances, or any of the other many ways we now utilize the Internet to for interaction, to think about what happens to our digital assets after we pass on.
Digital assets cover a wide range of components–hardware, password-protected accounts, intellectual property, domain names, monetized platforms and content, acquired or collected data, digital currency and so many more. They could also mean online mementos like photos, videos and music playlists. Given the dynamism of the digital world, the specifics of these asset classes is ever changing. But typically, if it exists in a digital form, is searchable (or discoverable) with metadata, and holds value, whether personal or to an organised entity, it is referred to as a digital asset. In traditional estate planning, a will or testament lays out explicitly how a person’s assets are to be divided amongst their surviving friends and family. An executor is often named to ensure the directives of the will are followed accordingly. If one passes without a will, they die “intestate” and the intestacy laws of their location determine how their assets will be divided. With digital assets, the lines aren’t as clear cut.
What happens to your “digital estate” when you pass on?
Relatively new and largely still unregulated, there aren’t sturdy structures around the mining and use of digital currencies across the world. While governments are still considering regulations and use, hackers are keenly interested in the over US$200 billion financial sector. Digital currencies are therefore held in highly encrypted systems and access often times limited solely to its owners.
“Death of cryptocurrency owners is one major way that most cryptos have been lost,” says Frank Eleanya, a Cryptocurrency Analyst based in Lagos, Nigeria.
In February, QuadrigaCX, Canada’s biggest cryptocurrency exchange lost access to US$145 million worth of bitcoin and other digital assets after Gerald Cotten, its 30-year old CEO and co-founder, died of complications arising from Crohn’s disease while traveling in India. His wife had no knowledge of the password or recovery key of the encrypted computer with which Cotten ran the exchange. In April, the company declared bankruptcy after filing for creditor protection having run into over US$150 million in debt.
“Often the owners of the wallets don’t share their keywords or passkeys with their loved ones, probably for fear of being exposed to hackers, because you might share it with a loved one and because they are not so invested in the market they may not be as meticulous as you,” adds Eleanya.
Besides digital wallets, cryptocurrencies are also stored in paper wallets, something referred to as cold storage, which is easier to pass on to loved ones. But sometimes, even these do not suffice. Many of Quadriga’s digital assets were held in cold wallets whose pass keys only Cotten knew. Understood, most pass keys are held in such close confidentiality due to increasing cyberattacks on cryptocurrencies. But lost cryptos are irrecoverable and, in some instances, something referred to as “probate by truck” can be effected. In this situation, “heirs” can claim property under the assumption that the deceased would have “wanted them to have it.” Ultimately, one can amass a fortune in digital currencies and without proper planning, lose all of it or not have it benefit their loved ones when they are gone.
How about other digital financial solutions like online savings and investment accounts, blogs that generate income or other platforms that directly or indirectly have monetary value?
Facebook and Instagram both offer two estate planning options to its users. Accounts can be memorialized if family or friends of the deceased contact the networks, or users can have their accounts permanently deleted after passing on.
For Facebook, memorialized accounts are marked with an indicator with birthday notifications or likes ceasing. Instagram memorialized accounts do not appear any differently and show up everywhere except the “Explore” page. Facebook also allows users to designate a legacy contact to manage a memorialised account. Instagram allows no access even to a deceased’s close circle. While Twitter will not grant a deceased’s family or friends access to their account, they deactivate accounts of users upon their demise if they are provided with necessary documents.
A thread that runs through each platform is that these requests must come from someone authorised by a will to execute such instructions or be set-up by a user before their death. There are chances that you know one of Facebook’s millions of deceased account holders and most likely still receive notifications about birthdays or friendiversaries. This can be disconcerting. But without clear directives for those left behind, social media accounts tend to live on indefinitely.
Digital content from platforms like Kindle, Amazon or iTunes, in tangible formats like hard or flash drives can easily be bequeathed to another person upon demise but with content you do not own (music, movies, e-books etc), they cannot be left to an heir.
So what should you do?
Ideally, one should be conscious of the terms and conditions of online platforms as you sign up and leave your footprints across the web. Find answers to the following questions and address them accordingly:
- What applies to accounts created or data stored after one has passed?
- Are these accounts and their data transferable?
- Can they be accessed by next of kin?
- What documents need to be presented as proof in the event that a next of kin tries to take over an account?
Arming yourself with this information better allows you to plan for how your online estate is managed after you’re gone. Disclosing passwords to online financial or social media accounts is also another way to handle your digital estate.
“The ideal thing to do is include it as part of a will,” Eleanya says about cryptos.
This can be applied to everything. Making provisions for what happens to your digital assets in a legally binding document like a will and even having a digital estate executor ensure that the directives are carried out is a sure-proof way to plan how your online business is handled when you’re gone in a way that is not only beneficial to your legacy but also to those you leave behind.
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Sure, no one likes to think about, let alone talk about, death. But these are questions worth asking in the technological age.
Stacy Maurier, ’96 BA, ’97 BA(NativeStu), ’00 LLB, a lawyer specializing in estate law, helps clients figure out how to pass their digital assets on to their successors. She’s seen hundreds of thousands of dollars’ worth of online media and customer reward points get frozen behind digital locks in perpetuity because of poor planning or unfair laws.
Often, the last legal word belongs to a digital service’s end user licence agreement — the long spiel of legalese you skip past and then officially vouch you’ve read when installing software and the like. The law, Maurier says, is behind the curve on this.
Maurier says the best hope for consistency and sanity in this area is that Apple, Google and the other tech titans will uniformly agree on the inheritability of digital assets.
Until such a bout of enlightened co-operation occurs, here are five of Maurier’s top tips for ensuring that your data is left safely in the hands of your heirs.
1: Read the fine print
One of Maurier’s clients had spent $10,000 in Apple’s iTunes store. Naturally, the client wanted to include this trove of tunes in their will. But when Maurier looked into the matter, she had to deliver some unpleasant news.
“In Apple’s eyes, when you die their contract with you is over,” she says. In fact, according to Apple’s licence agreement, if you will your iPad to your friend with your password, you’re actually committing a crime.
No one wants to spend their life reading fine print. But if you put a substantial amount of money into a digital service or product, the effort is worth it. Each digital asset is governed by a different set of rules. For example, Shoppers Optimum, a loyalty reward program operated by Shoppers Drug Mart, can be included in a will — but only if the member’s points are donated to a charity.
2: Use password management software
Security experts advise us to change all our passwords. All the time. Forever. But when you think of all of your digital logins — tablet, email, social media accounts, online banking and shopping — following that advice can quickly seem like a full-time job. Plus, it makes it hard for anyone else to access your various accounts — including your executor. Maurier tells her clients to use password management software (such as LastPass or Passpack), something that will store and automatically change and input passwords for all of your online accounts.
Once you’ve picked your software, create a password for your account on that service that’s really hard to guess. Then, Maurier says, write it down, put it somewhere safe and make sure it’s noted in your will. (She’s a fan of safety deposit boxes for storage. For those who don’t want to buy one, she recommends putting important documents in the freezer. If your house burns down, the freezer is the last thing to go.)
3: Have important photographs printed
According to market research firm KeyPoint Intelligence, a staggering 1.2 trillion digital photographs will be taken in 2017, way up from 2011’s measly 400 billion. So how can you ensure your snapshots and Instagram posts are available to posterity?
Maurier has, perhaps, a counterintuitive answer: print the pictures.
“Technology changes so fast,” she says. “When I was in university we burned our pictures to DVDs. I now own four computers and none of them has a DVD drive.” While those photos aren’t lost forever, they are more difficult to get to.
It’s easy to imagine continued technological evolution will make it similarly challenging to access photos stored on a cellphone, a secure digital card or even in the amorphous data cloud. That’s why Maurier advises having any photos you want to pass on to loved ones printed and stored in an album as a backup.
4: Use flexible language
Aeroplan, a customer rewards program founded by Air Canada in 1984, is currently facing an uncertain future after the airline announced plans to cut the cord. Aeroplan might survive — the changes won’t take effect until 2020, so it has some time to find a solution — but it might not. If the program goes belly up, Maurier says, the odds that all those Aeroplan miles you stockpiled and want to will to your loved one might simply disappear.
So, using flexible language in your will, says Maurier, can offer some security when it comes to the relentless pace of change in the digital sphere, and it can help to accommodate a digital asset’s changing services, features and even its very existence.
5: Consider leaving some digital assets out
On the subject of leaving things out, Maurier has witnessed many clients come to unwelcome realizations about their deceased loved ones through their digital assets. The main culprit here is access to an email account, which can sometimes divulge more about us than we intend. Coming to this knowledge while coming to terms with someone’s passing can make a hard situation still more difficult for loved ones.
When it comes to your digital legacy, a little judicious censorship might be in everyone’s interest.
Stacy Maurier is a UAlberta law grad and the founder of Estate Connection, a law firm specializing in inheritance.
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e?” she asks. “A century from now, will anyone even have any idea what that is?”
That’s a key issue for death in the digital age: Software goes out of date quickly, but memorials are meant to last forever. Today even keeping track of who is here and who is gone is a challenge. At some point you’ve probably had the unnerving experience of receiving a Facebook reminder to celebrate a birthday of a friend who is no longer alive.
A different kind of second life
Entrepreneurs are rushing in to solve this problem of “digital death curation.”
A site called the Digital Beyond maintains a list of dozens of companies that handle everything from closing out social media accounts and maintaining permanent cloud-based obituaries to creating interactive online memorials. Many of them allow you to post posthumous text and videos, or even to send scheduled messages to your loved ones long after you’re gone.
If the concept sounds creepy, it may be that you haven’t adapted yet to the fast-changing culture. “I think it’s all positive,” Rosenbloom says. “I don’t want to take up permanent real estate in a cemetery, but I do want to be remembered. Physical, virtual: the more the merrier.”
There’s an old joke that on the internet, no one knows you’re a dog. An updated version of that might be that on the internet, no one knows you’re dead. Chatbots — computer programs that emulate a person’s conversational style — could keep your digital self talking long after your physical self has stopped breathing.
A Russian startup called Luka has created a chatbot that simulates conversations with Prince. It can take on many other guises as well. Luka’s co-founder, Eugenia Kuyda, programmed a bot to mimic a close friend who died in 2015.
Taking the idea a step further, computer scientist Hossein Rahnama of the MIT Media Lab is developing what he calls “augmented eternity.” It would mine all the information about a dead person to create a detailed virtual presence. His nominal goal is to simulate famous historical figures as an educational tool, but the same approach could be applied to any person.
Brain in the cloud
Rahnama’s big-data approach to artificial intelligence parallels the way that researchers at IBM taught their Watson artificial intelligence platform how to think like a person. Six years ago, Watson famously defeated Ken Jennings to become the first machine Jeopardy champion, in large part by assimilating complex cultural knowledge.
Kurzweil thinks we’ll follow a similar path to the Singularity, the hypothetical time (around 2029, by his estimate) when the great blurring between humans and computers will occur. If he’s right, questions about what to do with the body at death will then become largely irrelevant.
“We can create bodies with nanotechnology, we can create virtual bodies in virtual reality,” Kurzweil says. “I think we’ll have a choice of bodies; we’ll certainly be routinely changing our parent body in virtual reality.”
Many scoff at Kurzweil’s vision, questioning not only its technological feasibility but also its philosophical desirability. Fantasizing about immortality keeps people from living their best lives right now, Rosenbloom argues. “It feeds into death denial. When there’s no longer a deadline on your life, it takes away a lot of the motivations that we have in our life.”
Like it or not, some forms of digital afterlife are here already, and more elaborate ones are on the way. Just as today’s kids have never laid hands on a VHS cassette, so they may soon find it strange that anyone ever traveled to a distant graveyard rather than activating a virtual memorial experience they can call up anywhere, anytime.