What happens to all your digital traces after you die or if you are incapacitated? What if your family needs or wants to get into your e-mails, online photos and assorted social media accounts? Access depends upon individuals policies, so it pays to check it ahead of time. Theoretically you could give passwords to heirs to avoid problems, but passwords have to be changed and this might not be the most secure option.
For example, Facebook allows you to have a legacy contact to manage your account after death. The contact can have access to what you have shared in Facebook posts, photos, videos. The contact cannot get to messages. Alternatively, you could chose to have your account permanently deleted upon death. Presumably, someone would have to notify Facebook if you die.
LinkedIn does not have a pre-death option. The person handling the estate has to fill out an online form and provide the name of the person who died, the URL of the profile, the relationship, email of deceased, link to an obituary, company they most recently worked for and a signature.
Twitter and Yahoo need a request from a personal representative or a family member and a death certificate to deactivate the accounts.
For Dropbox, you have to mail a request with the name and email of the deceased; your name, mailing address, email and relationship to the deceased; a photocopy of your government issued I.D.; and a court order establishing that it was the decedent’s intent that you have access to the account files and that Dropbox is legally compelled to provide them to you.
Google has an inactive account manager setting where it notifies you and the selected contact that the account will be treated as inactive after a pre-selected amount of time. The time out period begins after the last sign in and the notification is before the period ends. The contact has access to your data. Alternatively, Google has the option to automatically delete the account.
Absent pre-determined settings, a custodian of digital assets controlled access by their terms-of-service agreements. A new law in Arizona, the Revised Uniform Fiduciary Access to Digital Assets Act(FADAA), has been enacted to allow family members, heir and agents more flexibility.1
A user or account holder may use an online tool to direct the custodian to disclose or restrict a designated recipient to some or all of the user’s digital assets, including the content of electronic communications.2 A digital asset means an electronic record in which the individual has a right or interest.3 The online tool overrides a contrary direction in a will, trust or power of attorney.4 If you don’t want heirs to see your drunken party pictures, this could also be restricted in the online tool or estate documents.
If a user has not used an online tool or it isn’t available, he or she may allow or prohibit
disclosure to a fiduciary of some or all the digital assets.5 Either method overrides a contrary provision in a Terms-of-Service Agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.6
FADAA sets out procedures for producing the electronic communications such as what documents the personal representative, agent for the power of attorney, trustee or conservator needs to provide the custodian. When the required documents are presented, the act requires the custodian to produce a”catalogue of electronic communication sent or received my an original or successor user and stored, carried or maintained by the custodian” in an account of the trust, protected person, principal, or deceased person.7 A catalogue is “information that identifies each person with which a user has had an electronic communication, the time and date of the communication and the electronic address of the person.”8
Content is “information concerning the substance or meaning of the communication that has been sent or received by a user and is in an electronic storage by a custodian and is not readily accessible to the public.9 Content can’t be accessed unless the user expressly consented in a will, trust power of attorney or in another record; or by court order.
So if an fiduciary’s access to more than bare online information is important, then the authority should be granted in an online tool or in the will, trust, and power of attorney. The online tool negates directions in the will or trust and power of attorney, so they should not contradict each other. If the user wants to restrict the fiduciary’s access, that should be in the online tool and/or estate planning documents as well.
The statute also imposes legal duties on a fiduciary such as a duty of care, loyalty and confidentiality.10 A fiduciary or designated recipient’s authority is subject to terms of service if not otherwise directed in an estate document; and other applicable law such as copyright.11 It is limited by the scope of the fiduciary’s duties and may not be used to impersonate the user.12 In turn, the fiduciary with authority over the property of the user has a right to access any of the user’s digital assets absent online or written instructions in a will, trust or power of attorney to the contrary.13
What all this means is if it is important to preserve the content of digital assets, a person either has to check every online account they have for options for heir or fiduciary access if they are incapacitated or die; and/or have provisions in their wills or trusts and powers of attorney to allow a personal representative, trustee or agent to get into the accounts. Most people probably aren’t going to check every account, so having authority in documents would address the lack of online tools or their under-utilization.
If no direction is provided in estate documents or in online tools, the statute provides a method for gaining partial access to accounts, rather than being subject to the whims of custodians and their terms of service agreements.
In either case, a custodian is required to disclose the requested information if they receive documentation. The documentation would be that enumerated in the statute, rather than what is in the service agreement. Some estates are probated with little or no court involvement, so the heir now has more options.
1 §§14-13101-13118
2 A.R.S. 14-13102.16.
3 A.R.S. 14-13102.10.
4 A.R.S. 14-13104(A)
5 A.R.S. 14-13104(B).
6 A.R.S. 14-13104(C)
7 A.R.S. §§14-13108, 14-13110, 14-13111, 14-13113. 14-13114
8 A.R.S. 14-13102.4.
9 A.R.S. 14-13102.6.
10 A.R.S. 14-13115(A)
11 Id. at B.1-2.
12 Id. at B.3-4.
13 A.R.S. 14-13115(C)
Monday, October 24, 2016
Thursday, August 7, 2014
LOSE YOUR WILL?
If an original will can’t be found after a person’s death, it creates problems. Only an original will can be filed to open an informal probate with no court hearing. Probate is necessary to distribute property not jointly owned; or if the real estate equity was over $100,000 or personal property over is $75,000.
Arizona state law presumes that if the original will last seen in the possession of the testator(person who made the will) cannot be found after the testator’s death, then it is presumed to be revoked. The presumption can be rebutted by evidence of the testator’s intent in a hearing in front of a judge.
For proving the contents of a valid and unrevoked will, evidence such as a copy of the will and testimony of a witness that it is a true copy is sufficient. If no copy exists, the valid and unrevoked will contents can be proved, but with more difficulty.
Greedy relatives may contest the purported will and make the decedent’s personal representative defend the estate. Revocation is not always easy to disprove. Testimony of witnesses or a paper trail can show the intent of the testator. Court hearings can be unpredictable. Judges have to weight the evidence and may not rule in the testator’s favor. Litigation is expensive, unpleasant and emotionally draining for all parties involved.
If a court finds that a will was revoked, then property would pass according to state law. If the decedent had a spouse, then it wouldn’t make much difference, because most married people have jointly owned property, which passes automatically to the joint owner. If it is a second marriage and children from the first marriage exist, then the spouse gets one half of the separate property and none of the decedent’s one-half community property. If the decedent was single with no children and wanted to give to a friend or a partner, then intestate laws would give property to the decedent’s relatives instead. The friend or the partner may have been the person that they were the closest to. The property could still end up going to someone who may have had little contact with the decedent for many years.
So if you can’t find your original will, you need to make a new one. A lot of aggravation and expense can be avoided with an original document put in a safe place where it won’t burn up, disappear or be stolen. Plus, the relative that you despise won’t get your estate.
Thursday, October 11, 2012
Beneficiary Deeds
A great tool in Arizona for avoiding probate is a beneficiary deed. It works best if your main asset is your house and there isn’t a large amount of other property that is subject to probate. Real property with an equity over $75,000 might be probated if the property isn’t in a trust. Personal property over $50,000 is probated if it has no joint owners or a beneficiary designated.
A beneficiary deed is defined by A.R.S. 33-405 as "a deed that conveys an interest in real property, including any debt secured by a lien on real property, to a grantee beneficiary designated by the owner and that expressly states that the deed is effective on the death of the owner transfers the interest to the designated grantee beneficiary effective on the death of the owner subject to all conveyances, assignments, contracts, mortgages, deeds of trust, liens, security pledges and other encumbrances made by the owner or to which the owner was subject during the owner’s lifetime." An owner or owners can convey their property to their children, for example, effective upon their death. Any debt that is on the property goes with it.
The statute allows for multiple grantees who can take title as joint tenants with right of survivorship, tenants in common or a husband and wife as community property with right of survivorship. The type of tenancy determines what happens if one of the parties predeceases the original property owner. If two people are to receive the property as tenants in common and one predeceases the grantor(person giving the property), then the surviving party takes the property, but the party could be a co-owner with the predeceased person’s heirs. If two people who are to receive the property as joint tenants and one predecease the owner, then the surviving person takes the property alone. Thus, if you are going to name two children as beneficiaries, you have to decide what you want to happen if one predeceases you. Ideally, you should change your documents when an heir predeceases you while you are still alive, but this doesn’t always happen.
A beneficiary deed can name a successor grantee beneficiary. If one child dies, then their children can inherit, for example. The deed would have to state the condition on which the interest of the successor grantee beneficiary would vest, such as if the named parent predeceased the grantor and no siblings were available to inherit the property.
To have multiple beneficiaries assumes that would they be able to deal with each other in deciding how to handle to property. If two siblings are named as beneficiaries and they hate each other, it would defeat the purpose of the deed to avoid probate because they might end up in court disputing the disposition of the property. If a beneficiary unexpectedly becomes a co-owner with another relative because the grantees are tenants in common and the first beneficiary predeceased the grantor, then that could created disputes as well. So the dynamics of the potential beneficiaries as joint property owners is critical.
The advantage of a beneficiary deed is that it is revocable. It has to be recorded to be effective, but a recorded revocation will can be canceled if the owner changes his or her mind as to disposition. If there is more than one owner, it is revoked by any of the owners who executed the deed. If the real property is owned by joint tenants with right of survivorship or community property with right of survivorship and the revocation is not executed by the all the owners, then revocation is not effective unless executed by the last surviving owner.
A beneficiary deed will not replace a will, but it may be used instead of a trust to avoid probate, if a person’s other assets would not be probated. It has to be drafted carefully and recorded, so an attorney familiar with deeds and probate law should write it.
ARS 33-405
A beneficiary deed is defined by A.R.S. 33-405 as "a deed that conveys an interest in real property, including any debt secured by a lien on real property, to a grantee beneficiary designated by the owner and that expressly states that the deed is effective on the death of the owner transfers the interest to the designated grantee beneficiary effective on the death of the owner subject to all conveyances, assignments, contracts, mortgages, deeds of trust, liens, security pledges and other encumbrances made by the owner or to which the owner was subject during the owner’s lifetime." An owner or owners can convey their property to their children, for example, effective upon their death. Any debt that is on the property goes with it.
The statute allows for multiple grantees who can take title as joint tenants with right of survivorship, tenants in common or a husband and wife as community property with right of survivorship. The type of tenancy determines what happens if one of the parties predeceases the original property owner. If two people are to receive the property as tenants in common and one predeceases the grantor(person giving the property), then the surviving party takes the property, but the party could be a co-owner with the predeceased person’s heirs. If two people who are to receive the property as joint tenants and one predecease the owner, then the surviving person takes the property alone. Thus, if you are going to name two children as beneficiaries, you have to decide what you want to happen if one predeceases you. Ideally, you should change your documents when an heir predeceases you while you are still alive, but this doesn’t always happen.
A beneficiary deed can name a successor grantee beneficiary. If one child dies, then their children can inherit, for example. The deed would have to state the condition on which the interest of the successor grantee beneficiary would vest, such as if the named parent predeceased the grantor and no siblings were available to inherit the property.
To have multiple beneficiaries assumes that would they be able to deal with each other in deciding how to handle to property. If two siblings are named as beneficiaries and they hate each other, it would defeat the purpose of the deed to avoid probate because they might end up in court disputing the disposition of the property. If a beneficiary unexpectedly becomes a co-owner with another relative because the grantees are tenants in common and the first beneficiary predeceased the grantor, then that could created disputes as well. So the dynamics of the potential beneficiaries as joint property owners is critical.
The advantage of a beneficiary deed is that it is revocable. It has to be recorded to be effective, but a recorded revocation will can be canceled if the owner changes his or her mind as to disposition. If there is more than one owner, it is revoked by any of the owners who executed the deed. If the real property is owned by joint tenants with right of survivorship or community property with right of survivorship and the revocation is not executed by the all the owners, then revocation is not effective unless executed by the last surviving owner.
A beneficiary deed will not replace a will, but it may be used instead of a trust to avoid probate, if a person’s other assets would not be probated. It has to be drafted carefully and recorded, so an attorney familiar with deeds and probate law should write it.
ARS 33-405
Wednesday, January 19, 2011
WHY YOU NEED A WILL AND WHY PEOPLE DON’T LIKE MAKING ONE
Most lawyers would agree that is essential to have a will or trust. If you don’t have a written document stating who gets your property, it passes according to state law, which may not be what you want. If you don’t have a will and you are married, property will pass to your spouse. Since most property in a marriage is jointly owned, it passes to the joint owner automatically. If you are widowed or divorced, your property will pass to your children.
But if your spouse is from a second marriage, and stepchildren are involved, it gets sticky. You and your spouse may have separate property that you don’t want to give to each other or to your spouse’s children It also gets problematic not to have a will or a trust if you don’t want a child not to receive anything because you haven’t heard from them in years, if they are addicts, spendthrifts, are in jail or if they have a disability and receive public aid. An inheritance may make someone ineligible for public aid.
If you have a partner and are not married, the person won’t get any property not jointly owned unless it is given in a will. If you have no children, then your property will pass to the nearest heir, which may be parents, siblings or grandparents.
But people sometimes don’t get around to making out a will. According to a Findlaw.com survey, which is a legal information website, nearly 60 % of American don’t have a will. Maybe they don’t want to think about it or assume that they don’t need one. It’s not a lot of fun to go through the process of making a will. It’s kind of like doing something mundane and boring like shopping for insurance. It’s work and it’s not pleasant to think about what happens after you die. Most people fear their own mortality even if they believe in an afterlife. It’s a great unknown. What if nothing exists once they die? What if they turn into dust and everyone forgets about them? Have a will written reminds a person of all these nasty fears. It’s easier not to have to think about one’s own death.
But then a friend or a relative dies and they experience what legal mess will ensue if no will exists. Relatives come out of the woodwork and demand part of the estate. A self appointed executor may set up camp in the decedent’s house, start selling property and pocket the money for himself. The estate may end up being tied up in court for years because no one can decide how the property should be divided. Situations like that remind a person that this could happen to their estate. Or they may decide to bury their head in the sand and hope the problem goes away without doing anything about it. Sometimes even lawyers do this. You would think that they know better, but they fall prey to the same trap.
Some people have a difficult time deciding what to do with their property. It’s easy to decide to give it to their spouse, but they can’t decide how to divide it among their children. If a child is rich, then they may not want to give as much to them as to a child who has less. Also a parent may fear that child’s spouse will force the child to give the spouse the property in a divorce. Once property is gifted to someone, the person making the gift has no control over it. A child may be immature and not be able to handle money.
Not everyone considers alternative choices if a child predeceases them. If a child dies, does their share go to their children or to the other siblings? Or maybe to someone else entirely?
If a person isn’t married or have a partner or children, then it is more difficult to choose where the property goes. Does it go to a charity, a relative, a friend or a niece? Who handles the estate?
Besides the property issues is the decision is who will be the person handling the estate, which is the person representative. If a person is married, the natural decision is the spouse, but not always. If a person has grown children, then they can be alternates. Not everyone is suited for the role, however. The personal representative has to act on behalf of the estate and must be responsible and trustworthy. Estate money is not the personal piggy bank of the personal representative. The personal representative has to pay the bills, file the tax forms, distribute money and sell property. If a person doesn’t have a suitable person to handle the estate, then a bank or a fiduciary may have to do it. It isn’t an easy decision.
So all the planning that goes into a will or trust can be hard work and involve tough decisions. But if you ignore it, it won’t go away. It’s better to deal with tough decisions now so that your heir won’t have to deal with a morass later.
This blog is for information only and is not intended to be legal advice and anyone with a specific legal issue should seek the advice of an attorney. It does not create an attorney client relationship.
But if your spouse is from a second marriage, and stepchildren are involved, it gets sticky. You and your spouse may have separate property that you don’t want to give to each other or to your spouse’s children It also gets problematic not to have a will or a trust if you don’t want a child not to receive anything because you haven’t heard from them in years, if they are addicts, spendthrifts, are in jail or if they have a disability and receive public aid. An inheritance may make someone ineligible for public aid.
If you have a partner and are not married, the person won’t get any property not jointly owned unless it is given in a will. If you have no children, then your property will pass to the nearest heir, which may be parents, siblings or grandparents.
But people sometimes don’t get around to making out a will. According to a Findlaw.com survey, which is a legal information website, nearly 60 % of American don’t have a will. Maybe they don’t want to think about it or assume that they don’t need one. It’s not a lot of fun to go through the process of making a will. It’s kind of like doing something mundane and boring like shopping for insurance. It’s work and it’s not pleasant to think about what happens after you die. Most people fear their own mortality even if they believe in an afterlife. It’s a great unknown. What if nothing exists once they die? What if they turn into dust and everyone forgets about them? Have a will written reminds a person of all these nasty fears. It’s easier not to have to think about one’s own death.
But then a friend or a relative dies and they experience what legal mess will ensue if no will exists. Relatives come out of the woodwork and demand part of the estate. A self appointed executor may set up camp in the decedent’s house, start selling property and pocket the money for himself. The estate may end up being tied up in court for years because no one can decide how the property should be divided. Situations like that remind a person that this could happen to their estate. Or they may decide to bury their head in the sand and hope the problem goes away without doing anything about it. Sometimes even lawyers do this. You would think that they know better, but they fall prey to the same trap.
Some people have a difficult time deciding what to do with their property. It’s easy to decide to give it to their spouse, but they can’t decide how to divide it among their children. If a child is rich, then they may not want to give as much to them as to a child who has less. Also a parent may fear that child’s spouse will force the child to give the spouse the property in a divorce. Once property is gifted to someone, the person making the gift has no control over it. A child may be immature and not be able to handle money.
Not everyone considers alternative choices if a child predeceases them. If a child dies, does their share go to their children or to the other siblings? Or maybe to someone else entirely?
If a person isn’t married or have a partner or children, then it is more difficult to choose where the property goes. Does it go to a charity, a relative, a friend or a niece? Who handles the estate?
Besides the property issues is the decision is who will be the person handling the estate, which is the person representative. If a person is married, the natural decision is the spouse, but not always. If a person has grown children, then they can be alternates. Not everyone is suited for the role, however. The personal representative has to act on behalf of the estate and must be responsible and trustworthy. Estate money is not the personal piggy bank of the personal representative. The personal representative has to pay the bills, file the tax forms, distribute money and sell property. If a person doesn’t have a suitable person to handle the estate, then a bank or a fiduciary may have to do it. It isn’t an easy decision.
So all the planning that goes into a will or trust can be hard work and involve tough decisions. But if you ignore it, it won’t go away. It’s better to deal with tough decisions now so that your heir won’t have to deal with a morass later.
This blog is for information only and is not intended to be legal advice and anyone with a specific legal issue should seek the advice of an attorney. It does not create an attorney client relationship.
Sunday, November 28, 2010
Ten Things They Never Taught You in Law School
As a solo practitioner, I have had to learn some things the hard way. Some things I wish they had taught in law school:
1. We had a basic class in interviewing a client. However that was the extent of it. The practice of law involves managing the client. You have to train them not to call at all hours of the day and night, to pay their bills on time and not to expect more than they agreed to pay for.
2. Some clients are really smart. These are the dream clients. They are organized, they write out what they want and ask really intelligent questions.
3. A lawyer is not a bus. They don't have to take every client that wants to hire them. But some clients have a really sad sob story. These are usually the ones that don't have money. Some of my biggest mistakes have been letting them convince me to hire them and then get stuck with a nightmare case.
4. The clients who demand the most from you are the most unwilling to adequately compensate you for their time. They expect you to work miracles, but they don't value your expertise.
5. The clients who think they have a simple situation to handle usually don't. This is especially true in probate cases where anything out of the ordinary perplexes the clerk whom you are filing the papers with. They have to have a long consultation with management, require an obscure notation in the filed documents and require you to come back again to file later.
6. On a related note, some clients phone you with a "simple" question that is horribly complex and requiring research and expect you to answer it instantly and for free.
7. Clients don't tell you everything. I found bankruptcy clients especially prone to this fault. If they had an asset or debt they didn't want to list in the petition, they wouldn't tell you about it unless you pressed them on it.
8. People basically distrust lawyers. This might stem from the media that portrays lawyers as sneaky and nasty. Some lawyers might be like this, but most are decent. People who have been involved as a party in litigation might perceive lawyers as being this way because the court system is adversarial. A trial lawyers is supposed to make the other side look bad and they may make nasty allegations to that end. But not all law is like that.
9. Being a lawyer is a heavy responsibility. You have some one's financial or family life in your hands and you can't make mistakes without consequences. You can argue theory in law school, but when it comes to reality, it's a lot different. You have to know what you are doing or learn it quickly. Dabbling is dangerous.
10. What you think you know about an area of law will invariably change and a smart client will be the first one to let you know about it.
Sometimes I wish law school was less theory and more practice so I wouldn't have to learn these things the hard way.
1. We had a basic class in interviewing a client. However that was the extent of it. The practice of law involves managing the client. You have to train them not to call at all hours of the day and night, to pay their bills on time and not to expect more than they agreed to pay for.
2. Some clients are really smart. These are the dream clients. They are organized, they write out what they want and ask really intelligent questions.
3. A lawyer is not a bus. They don't have to take every client that wants to hire them. But some clients have a really sad sob story. These are usually the ones that don't have money. Some of my biggest mistakes have been letting them convince me to hire them and then get stuck with a nightmare case.
4. The clients who demand the most from you are the most unwilling to adequately compensate you for their time. They expect you to work miracles, but they don't value your expertise.
5. The clients who think they have a simple situation to handle usually don't. This is especially true in probate cases where anything out of the ordinary perplexes the clerk whom you are filing the papers with. They have to have a long consultation with management, require an obscure notation in the filed documents and require you to come back again to file later.
6. On a related note, some clients phone you with a "simple" question that is horribly complex and requiring research and expect you to answer it instantly and for free.
7. Clients don't tell you everything. I found bankruptcy clients especially prone to this fault. If they had an asset or debt they didn't want to list in the petition, they wouldn't tell you about it unless you pressed them on it.
8. People basically distrust lawyers. This might stem from the media that portrays lawyers as sneaky and nasty. Some lawyers might be like this, but most are decent. People who have been involved as a party in litigation might perceive lawyers as being this way because the court system is adversarial. A trial lawyers is supposed to make the other side look bad and they may make nasty allegations to that end. But not all law is like that.
9. Being a lawyer is a heavy responsibility. You have some one's financial or family life in your hands and you can't make mistakes without consequences. You can argue theory in law school, but when it comes to reality, it's a lot different. You have to know what you are doing or learn it quickly. Dabbling is dangerous.
10. What you think you know about an area of law will invariably change and a smart client will be the first one to let you know about it.
Sometimes I wish law school was less theory and more practice so I wouldn't have to learn these things the hard way.
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