Kansas and Missouri Estate Planning

What's This I Hear About "Electronic" Wills?

Electronic estate planning does not mean you should do it alone.

In this digital age, some states are now permitting electronic wills.

What are electronic wills?

As the name suggests, these wills allow for you to sign and complete the document online.

This includes remote notarization and witnessing through secure video.

According to a recent News Chief article “Electronic wills are coming, but are they a good idea?,” electronic estate planning is not as simple as it means.

Be sure you know the specifics of the laws in your state.

For example, Florida requires notaries to pass training in order to have the authority to execute electronic wills.

The state must also approve custodians for safeguarding the electronic will until you die and the will is submitted to probate.

You cannot assume all states will honors these documents.

Why?

Only four states have implemented laws about storing and executing electronic wills.

And no, neither Kansas nor Missouri is one of the four.

What happens if you make an electronic will and a given state does not recognize it when presented for probate?

Your assets will be distributed according to the intestacy laws of the state.

What does this mean?

Traditional last wills created by an experienced estate planning attorney and signed in hard copy before witnesses and a notary in his or her office are enjoy a presumption of authority.

Traditional estate planning also protects you and your loved ones from criminals who may seek to steal your assets.

Although electronic wills may be an option in your state, they may not be the wisest choice.

Reference: News Chief (August 23, 2019) “Electronic wills are coming, but are they a good idea?”

Are "Digital Assets" Part of My Estate?

Do not neglect your digital assets.

So much we do is online or on our devices.

We bank online.

We communicate online.

We even share and store photos and videos online.

Would your loved ones have access to these if you died?

Or would they be lost?

According to a recent The Street article titled “Estate Planning in a Digital World,” estate planning for your digital assets is more important than ever before.

While physical assets are relatively straightforward, digital assets can bring complications.

How so?

Digital assets can change.

Another entity may own the platform where the assets reside.

Intellectual property and privacy laws can create legal complications.

This is especially true if the service provider has no policy on what happens when the user has passed away.

Be sure to read any terms of use and plan accordingly.

Some states, like Kansas and Missouri, have laws to help guide estate planning for digital assets.

Working with an experienced estate planning attorney is key to a thorough understanding of the laws of your estate and how to create a plan to include these considerations.

Other things you can do to help?

Keep an inventory of all digital assets and their passwords.

Your list should be kept updated and in a secure location where your family or executor will have access to it when you pass away.

Personally, I have had mine stored on the online program LastPass for years.

Do not forget to legally designate a person to handle your online files and accounts when you pass away.

The more detailed you are in your instructions, the easier it will be to for your loves ones to follow your final wishes regarding your digital assets.

Taking steps now to be organized and thorough will make the task of creating a plan for your digital assets less daunting and more successful.

Reference: The Street (June 3, 2019) “Estate Planning in a Digital World”

Why Should I Make Digital Asset Passwords Part of My Estate Plan?

Passwords are important in passing digital assets.

We live in a digital age.

Banking can be done online.

You chat with friends online.

Photos can be shared and stored in the cloud.

According to a recent Kiplinger article titled “Your Estate Plan Isn't Complete Without Fixing the Password Problem,” these facts alone make digital estate planning important.

Without passwords you may leave your stocks, investments, bank accounts, and credit cards accounts inaccessible when you die.

This will place your loved ones and your executor in a difficult position.

How can they access your funds to make necessary payments and disbursements?

You should include your passwords in your estate plan now.

Death can call unexpectedly.

Ask the family and clients of Gerry Cotton.

He was the CEO of a cryptocurrency exchange.

When he died, the password to the cold locker storage for the exchange was lost.

This left $190 million in investor funds inaccessible.

Yikes!

What can you do?

One simple way is to provide passwords to a trusted family member.

Another option is to write down the passwords and keep them in a safety deposit box.

When you die or are incapacitated, the executor or the power of attorney can then access the safety deposit box.

Although this is a more secure option, it will take more effort and vigilance to keep passwords updated.

Practical tip: contact the financial institution where your safety deposit box is located and follow its required process to ensure that your executor or power of attorney is authorized to have access right now.

The third option is to secure them in a digital wallet.

What is a digital wallet?

It stores your passwords in an encrypted file on the cloud.

I have used LastPass for years.

If you choose that option, merely leave the one "master" password with your executor.

Whatever method you choose, prioritize digital assets in your estate planning.

Reference: Kiplinger (April 19, 2019) “Your Estate Plan Isn't Complete Without Fixing the Password Problem”

Are There Any Drawbacks to Online Estate Plans?

Doing your own estate planning can be dangerous.

Are you an experienced estate planning attorney?

If yes, ignore this blog.

It does not apply to you.

If no, keep reading.

According to a recent Next Avenue titled “The Problems With Do-It-Yourself Online Wills,” doing your own estate planning is risky business (and we all know "Risky Business" is the domain of a younger Tom Cruise).

Those with no experience often turn to online DIY services for estate planning.

At least one of these programs had a number of typos and errors.

It also was missing essential documents or packaging the same documents as different plans.

Yikes!

If you were to use this program, would you know what was wrong?

Would you be blissfully unaware until it was too late?

Many who choose to do their own estate planning never know ... but their loved ones eventually will.

What if the site you are using has attorneys on staff?

Often these attorneys do not offer specific help on your personal documents.

If they do, it will often cost you significant fees.

Perhaps you are thinking, “But I do my own taxes and they turn out fine most of the time.”

They may.

If something goes wrong, you and the IRS get to find and fix this issue together.

In estate planning this is not the case.

If the government finds something wrong with your will, trust, or power of attorney, it is sorry Charlie.

You are either dead or incapacitated.

Either way, the both you and your plan will be powerless.

While you can use a DIY program to get a plan cheap and quick, you may actually be paying for nothing.

To avoid this, work with an experienced estate planning attorney to create a plan to meet your specific goals.

Your peace of mind and a successful estate plan is well worth seeking and paying for these services.

Reference: Next Avenue (March 29, 2019) “The Problems With Do-It-Yourself Online Wills”

What do I need to Know About Estate Planning for "Digital Assets"?

Digital assets are an important part of estate planning.

We live in a digital world.

We can carry the internet around with us in our pockets.

In fact, more than three-fourths of Americans access the internet daily.

According to a recent Forbes article titled “You Should Have An Estate Plan For Your Facebook Account,” more and more of our personal data and information is being stored online.

It can make life easier.

Unfortunately, if you do not make proper plans, this "benefit" can actually make the lives of your loves ones far more complicated when you pass away.

They may need to access your online banking, email, brokerage accounts, social media accounts, or frequent flier miles.

Family photos are primarily stored on devices or on the web, too.

Without access to these, your family will lose them forever.

What should you do?

Include your digital assets in your estate planning.

Gather any necessary information such as accounts and passwords, then give your executor access.

Even if they have your passwords, it may not be enough.

The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) has been adopted by many states.

This statute requires express authorization before a vendor must allowing access to digital content.

This means you cannot access the information merely because you are related or the executor of an estate.

Does this sound like a lot of work?

It can be.

It can also be made easier.

How?

You can use a password manager to maintain records of all of your online accounts.

You can set them up to provide access to an individual should you die or become incapacitated.

Work with an experienced estate planning attorney to ensure the language in your will, trusts, or power-of-attorney documents includes provisions for granting access to your personal representative, trustee, and attorney in fact.

Review any policies for online service providers with your attorney regarding the disability or death of an owner.

Not all policies are the same.

Your attorney can help you navigate the specific policies in your various plans.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Forbes (June 3, 2018) “You Should Have An Estate Plan For Your Facebook Account”

What is the Latest on Digital Assets Law?

That is actually a timely question, especially since I have not written on the topic since April.

A new California law went into effect recently with "tech" backing. The law provides a road map of sorts for handling the emails, social media accounts and other digital assets when the owner dies.

In practice, the law creates a three-tiered approach when designating who has the authority to access such online data postmortem.

Here is how the tiers work:

1. The "default" is to consider any intent expressed by the decedent user via an online tool.
2. If there is no intent expressed, then the fiduciaries and data-holding companies would consider any direction left in a will.
3. Failing either the default or testamentary directions, the terms of service for each individual site will be control.

A recent article in The Recorder, titled “Digital Assets Bill Gets Governor's Signature,” reports that the new law is a stricter version of model legislation known as the Revised Uniform Fiduciary Access to Digital Assets Act.

For its part, the model legislation has been used as a template for similar laws in 11 states.

Digital asset legislation has been introduced in more than 18 other states, according to the Legislature and the National Conference of State Legislatures.

The bill received strong support from social media and search companies such as Facebook, Google, and Yahoo, along with other data-holding companies and tech trade associations.

This latest California law offers liability protections for companies that comply in good faith with the data-handling provisions. Understandably, the only exceptions are in cases of gross negligence or willful misconduct.

The new law was not without opposition.

Civil liberties and privacy groups believed the broad grant of immunity is overreaching.

In addition, they argued that an online tool should not be given precedence over a decedent's will, power of attorney or other legal documents.

As you can see, the law regarding estate planning for digital assets continues to develop.

Stay tuned. 

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: The Recorder (Sept. 26, 2016) “Digital Assets Bill Gets Governor's Signature”

What Estate Planning Steps Should I Take Regarding My Digital Assets?

As I noted in a blog post last week, Oregon has passed a law authorizing appointment of a "fiduciary" to access digital assets if citizens of that state so provide in their estate plans.

The new law takes effect on January 1, 2017.

In fact, other state legislatures are attempting to address access to digital accounts after the owner passes away.

Some have managed to pass laws granting access to an estate executor, but most have not passed anything yet.

Consequently, until your state steps up, you will need to follow the process outlined by the various tech companies for each account you have.

CNET recently made that easier by detailing the steps to take for some common services in “How to prepare for your digital afterlife.”

Here is a quick look at the actions you should take now:

Google

 You can take advantage of Google’s "inactive account" service.

The service notifies folks you select that your account has been inactive for a while.

Thereafter, they will be given access to your account for three months.

Microsoft

Your relatives will have to follow a "next of kin" process.

After completing that, account data will be provided on a DVD.

Yahoo and Twitter

Neither of these companies has a set process.

Takeaway: You will have to provide someone with your login information, if you want them to have access to the accounts after you pass away.

Facebook

You can designate a "legacy contact" who will have some access to your account. 

Here is another idea, if all of the above sounds like a hassle.

Consider using an online password manager (e.g., I use "LastPass") to store your online account information in one place.

That way, your designated person will be able to assess everything with just the use of a "master" password to open the manager.

While you are at it, consider contacting your state legislators and asking them to get to work on the issue. 

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: CNET (March 2, 2016) “How to prepare for your digital afterlife.”

What is the Latest On Digital Asset Laws?

If you are a regular reader of this blog, then you know that digital assets are a "hot topic" in the estate planning world.

Nearly everyone is online these days.

So, when someone dies, what happens to their "virtual" life and assets? 

In Oregon, recently signed legislation will go into effect on January 1, 2017, to protect the "digital assets" of its citizens.

kitv.com reported this new development in an article titled "Governor signs new law which protects digital assets."

What does the law provide?

To gain access to the digital assets of a decedent, he or she must affirmatively provide for fiduciary access by specific provision in appropriate estate planning documents.

What if an Oregonian fails to do so?

Then access to his or her digital assets defaults to the terms of the various service agreements.

As you know, other states are addressing this issue.

Stay tuned.

This issue is not going away anytime soon. 

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: kitv.com (March 8, 2016) "Governor signs new law which protects digital assets"

Where can I Get Help to Securely Organize and Store My Digital Assets?

This seems to be a popular question.

Why?

I think it is because we are all wanting on-demand, 24/7/365 access to our important documents, data and information from anywhere in the world.

Some have called such storage a "smart vault." 

Enter a recent article in US News titled "Passwords and Powers of Attorney: Your Digital Estate Planning Options."

According to the article, when it comes to estate planning there are new companies springing up to meet this demand to gather all the information our heirs will need in one place.

These services provide prompts to encourage users to think about issues they have yet to document.

For example, what kind of music would you like played in your final hours of life or at your funeral?

There are several companies that let you create a digital repository of your will, health care directives, funeral wishes, family photos, plans for your pet, desires for your Facebook page, and what you would want included in (or excluded from) your obituary.

Benefit?

You can document your instructions and wishes now so your family can easily access (or share) them when the time comes.

So, what are some first steps?

Talk with your family about your end-of-life wishes, then record your wishes and, finally, make it easy for family members to find them when needed.

Also, you can choose whom you authorize to access specific information and whether you want to share it now or not until after you have passed on.

The goal of these smart vaults?

To make an already difficult time and process as easy as possible for heirs by having this information all in one online place.

Most online sites act like toolkits by providing places to upload wills, trusts, health care directives, powers of attorney and appraisals of your valuable items. In addition, such sites also provide ways to record the location of notarized and signed copies of documents, as well as the contact information for your estate planning attorney.

As with everything in a market economy, charges vary with these services.

In addition to estate planning functions, they all have options for sharing all the aspects of your digital life, from passwords to bank accounts to the message you want sent to your Twitter followers after you have passed away.

All that noted, everyone's situation is different.

Although these smart vault services are useful tools, no online service can replace the advice of an experienced estate planning attorney who understands your specific situation.

In the end, proper estate planning is not a do-it-yourself project. 

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: US News (December 3, 2015) "Passwords and Powers of Attorney: You're Digital Estate Planning Options"

How do I Plan for My "Digital Assets" in My Estate Plan?

My, this is become a hot topic.

And this topic appears to be of special interest to Millennials who are contemplating their own morbidity and mortality, perhaps because they have grown up so tech-savvy.

Many of them have quite an investment in their "digital portfolios," too.

Enter Andrew Magliochetti in a story reported in the New York Times titled “Plan Your Digital Legacy, and Update Often.”

Albeit still in his 20s, Andrew had his will prepared.

While planning for his other earthly stuff, his will made provisions for his digital assets, to include digitized family movies, social media accounts, digital currencies and domain names.

What about the url addresses, user names and passwords to such digital assets?

Andrew stored his passwords, including those for Facebook and Twitter, on a password manager his executor under the will (i.e., his brother) could easily find and access.

Then, Andrew uploaded family photos and movies to a file-hosting service so they would be easy to share.

Unlike Andrew, many folks who should know better fail to include digital effects in their estate plans.

Consequently, these potentially valuable assets may go unnoticed and cause unnecessary time (and money) to be wasted attempting to find them.

There are some assets like digital currencies that exist only in cyberspace.

Think video game characters and Internet domain names.

Unlike that ceramic bullfrog collection, you cannot put these intangible assets in a safety deposit box.

What about your Facebook photos or email addresses?

Getting postmortem access to social media accounts can be difficult because laws governing digital assets vary by state. Online sites concerned with user privacy have drastically different terms and conditions that sometimes exclude executors.

What to do?

Create an inventory of your online accounts and their passwords, but do not include them in your will.

Why not?

Practically speaking, you will cannot be changed every time you change your online account information.

Simply explain how you want each account handled if you die, with the terms and conditions for each site included. Save this inventory in an encrypted file, a safe, and with your estate planning attorney.

Feel free to go ahead and download the Virtual Assets Instruction Letter (VAIL) we provide to our clients as part of their estate planning.

You should also authorize your executor to obtain access to devices and online accounts and to reset passwords.

Be sure to store your photos on a computer or local storage device rather than relying solely on an online site. This step will make them easier to retrieve.

Better yet, save them on two storage devices in separate places, like a home safe and perhaps even your attorney's office.

Some assets are just incapable of being passed on to heirs.

For example, your ckassic rock iTunes library cannot be passed to your loved ones as digital music and your e-book purchases are nontransferable.

Why is that?

Because they are personally licensed to you as the user. You can only leave these assets if a user agreement permits it.

Contact an experienced estate planning attorney to help you cover all of the bases with your estate planning. 

So, how do you find an "experienced" estate planning attorney?

First, ask around. Friends, family and other professional advisors are trustworthy sources.

Second, conduct an "organic" search on "Google" for "estate planning" near you (e.g., "Estate Planning Anytown MoKan").

Third, either way, verify. Check out the education, experience, ratings and client reviews of any attorney before you contact him or her.

How?

There are two helpful resources just a mouse click away to assist with your due diligence:  Avvo.com and Lawyers.com.

Check any Avvo ratings, client ratings/testimonials and attorney endorsements on Avvo.com and any "peer ratings" by judges/other attorneys and any client ratings/testimonials on Lawyers.com.

In fact, I use both of these services to thoroughly vett attorneys before referring members of our "client" family for legal help in other areas of law or for matters in jurisdictions outside Kansas or Missouri.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: New York Times (November 11, 2015) “Plan Your Digital Legacy, and Update Often”