Power of Attorney

Estate Planning Building Blocks

No matter how simple or sophisticated, every Estate Plan  should have these 3 Essential Building Blocks:

Last Will and Testament:

This Document’s job is to tell the Probate Court

  • Who is to receive property from your estate (Probate Property)
  • Who is in charge of your estate (Executor or Personal Representative)
  • What powers or oversight the Court should Require (bond waiver or power to sell)

A Will can also create a testamentary Trust. If you do not have Will, then your property is subject to intestacy rules.  While you are generally free to dispose of your property as you desire, a spouse cannot be disinherited.

Power of Attorney:

Generally it is a good idea to have two; one for financial and the other for medical decisions.  A Power of Attorney designates a person who can make decisions on your behalf without a court order.  Some examples include:

Financial:  The ability to sell real estate; file taxes, write checks.

Medical: Make medical decisions for treatment, assisted or skilled nursing placement.

You do not lose your ability to make decisions for yourself by signing a Power of Attorney.  It can be revoked.  If you don’t have one and become incapacitated, your family may need an expensive guardianship in order to manage your property or make decisions about your care.

Advanced Healthcare Directives or Living Will:

This is a document that informs medical providers and your family about what type of care you want, or don’t want, at the end of your life.  For example, you may want life saving treatments withheld if certain conditions are met.  If you don’t have a directive, the law presumes that you would want certain care such as feeding tubes.

Click Here to Get Started.

Biggest Estate Planning Mistake:

Too many people become confused by all of the choices and therefore do nothing.  A better strategy is to start with the estate planning essentials and if necessary build from there.

Click Here to Get Started With 16 Simple Questions.

 

 

 

 

 


If creating an essentials plan, one should consider enhancing it with the following to possibly avoid probate.  These tools can be effective but have limitations.

Transfer On Death:

Transfer on Death documents do not transfer title while you’re alive and are inexpensive to create.  They do not allow for comprehensive planning.

Transfer on Death Deed:  Is one way to avoid probate if certain conditions are met.  This is a tool that can be used but it has drawbacks to a Trust.  Most notably, it does not provide for contingencies and it requires a beneficiary to file an acceptance within 9 months of the death.  A Transfer on Death Deed overrides provisions of a Will.

Transfer Title on Death:  Now motor vehicles can be transferred on death without a Will, Trust or Probate.

Beneficiary Designations:

Beneficiary designations are found as “Payable on Death” choices on bank accounts and beneficiary designations on life insurance polices, IRAs, Roths and brokerage accounts.  These pass to the chosen beneficiaries without probate.  In fact, a Will and a beneficiary designation disagree the Will loses.  These are forms that are created by the institutions, clients are counseled on how to use them to their advantage.  Often it is best to coordinate these with a Trust for maximum benefit.

Limitations of Transfer on Death and Beneficiary Designations:  While these tools can avoid probate, unless used with a Trust they do not provide for comprehensive planning.  If the person to inherit dies before the owner, then probate may still be needed for the next in line to inherit.  It also does not provide for planning such as youthful heirs, disabled heirs or those who need asset protection.


 

Living Trusts:

A Trust allows the Trustee is able to manage or distribute Trust property without the need for oversight or control of the a probate court.  Trusts can be very simple; such as distributing property outright.  Trusts can also provide asset protection to the person who sets it up and to those who will inherit.

 

What’s Right for You?

Prices indicate a basic package.  They include counseling, an estate planning binder, witnesses & Notary.

Essentials Package $750 Individual $900 Couple

Essentials Plus Package Individual $900, Couple $1050 (plus filing fee $13 per property)

Basic Trust Package Individual $1500 Couple $2500 (plus filing fee usually $45)

 

 

 

 

 

 

 

 

 

unlocking digital assets after death

Executors Fight to Get Access to E-mails

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.

How Yahoo Justified Refusal

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.

Want to read the Case?  Click Here

 

 

 

 

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