Advanced Health Care Directive (Living Will Form)
Advanced Health Care Directive (Living Will Form)
Has one of these happened to you?
These are calls we receive each week. Fortunately, Oklahoma has a several stream-lined ways to handle these issues. Here are a couple of ways to address the situation:
A Summary Administration is slightly different from an Ancillary Probate. It is available in three situations
Generally, the process involves filing a petition (if there was a Will enclosing a copy), sending notice to all heirs and creditors. An Administrator, usually a family, member is appointed. If there are no issues or claims the process can usually be concluded within 90 days. At that point the property will be transferred or distributed to the family members according to the Will or if there is no Will by Oklahoma’s intestacy statutes.
This procedure is relatively quick. This process is used if the deceased person has had a probate in a state other than Oklahoma. For example, if there was a probate in California, that court would not have the power to transfer or re-title property in Oklahoma. The process involves filing copies of those pleading in Oklahoma, providing notice to all heirs, creditors and persons named in the will. If there is no objection the matter can often be concluded within two months.
What does an Ancillary Probate cost?
Affidavit of Heirship
Occasionally, an Affidavit of Heirship will be sufficient for a company to sign a lease with you or to release payments. However, this will not vest you with ownership of the property for up to ten years. If there are multiple individuals entitled to inherit or creditors claims this may not be the best approach.
Probate services available in the following Oklahoma Counties:
John Ajemain, Forty-Six died in a bicycle accident. He had no Will or Trust. His brother and sister became the Personal Representatives (PRs) of his estate. They sought access to John’s “digital assets” in particular Yahoo e-mail account to review for other assets such as bank accounts and liabilities. Yahoo denied access and a court battle ensued.
Yahoo refused relied upon the two points. First they claimed that the Stored Communications Act “SCA”(18 USC Sec. 2701) prevented such disclosure. Yahoo also claimed that the terms of service agreement governing use of the Yahoo account allowed them to withhold or even destroy the information.
Stored Communication Act
The Court examined the SCA and found that the act was established to prevent “overzealous” law enforcement from gaining access to private accounts. However, the SCA provides an exception to the nondisclosure to “with the lawful consent of the originator”. Yahoo’s position was that the PRs “cannot lawfully consent on behalf of the decedent, regardless of the estate’s property interest in the e-mail messages”. In Yahoo’s view, only a living person had the authority to grant the consent.
Luckily, the court did not agree with Yahoo on this point. After an exhaustive examination of statutory construction, the Court held that the SCA could not be used to prevent disclosure to the PRs. It found that the PRs had the authority to provide “lawful consent” and that access to the records was necessary because Yahoo’s refusal “would significantly curtail the ability of the personal representatives to perform their duties”. The court stated that nothing in the SCA “would suggest that lawful consent precludes consent by a personal representative on a decedent’s behalf.”
Terms of Service Agreement, Yahoo’s Delete Button
Even though the Court threw out the SCA defense, it still wasn’t sure what to do the “Terms of Service Agreement”. According to Yahoo, that the Agreement trumps the PR’s property interest in the records. The Agreement says:
You agree that Yahoo, in its sole discretion, may terminate your password, account…and remove and discard any Content…for any reason”. The Court was not certain that this provision was enforceable or whether the essentials for a valid contract existed. In short, there wasn’t sufficient evidence to show that there was a “meeting of the minds” with regard to Yahoo’s Agreement. The Supreme Court sent the matter back to the Trial Court to take evidence on the matter.
What this Means to You
Unfortunately, the Court did provide a definitive answer to the question of whether the records will ultimately be handed over to the PRs. This will play itself out in the courts below. But there are things that you may consider. What is frightening is how hard Yahoo is fighting to keep John’s records from his PR. Yahoo is not alone in their position. This area of the law is evolving. While there are no definite answers the following are a few good ideas:
Digital Power of Attorney: Your power of attorney should provide your agent with the authority to access your accounts. This is increasingly necessary as many banks, financial products and other transactions occur digitally. Failure to have access may be disruptive in the event of a disability.
Digital Powers in Will: It is a good idea to include digital authorities in your Will which grants your Personal Representative the authority to access accounts.
Password Access: The powers stated above are useless if one does not have access to the passwords. Use a service like LastPass and DocuBank to keep track of your passwords.
Paper Copies: The Yahoo case shows why it is important to maintain some paper copies of your important records. Perhaps it is a good idea print out some statements and keep them with your other papers.
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