Articles Posted in Elder Law

In this post we will discuss why digital assets should be incorporated in the estate planning process just as you incorporate all of your physical assets. We will also explore what are some of the initial steps to take when formulating an estate plan with digital assets.

Step One: Understand what a digital asset is

A digital asset is an electronic record in which an individual has a right or an interest. The definition is broad and includes financial accounts, music files, electronic communications, cryptocurrencies, videos, and photographs, among many others. In order to dispose of these items, like the physical items in your home or that you have accumulated during your life you will need to know which of your assets are digital or electronic in nature.  

Estates lawyers are increasingly asked to help surviving family’s members locate cryptocurrencies because their loved one collected them during their lifetime, didn’t include it in their will or updated will, and now no one can find it. Planning for cryptocurrency is more complex than digital asset planning. For starters, cryptocurrency has no physical equivalent. Cryptocurrency were created online, are exchanged online, and are stored online.

Blockchain Technology

The first step to understanding cryptocurrency is to examine blockchain technology. Bitcoin and many other digital currencies or cryptocurrencies utilize blockchain technology to record transactions between parties efficiently, in a transparent and verifiable manner. Blockchain technology is a digital database containing information (no records, financial statements, or other types of data) that can be simultaneously used and shared within a large decentralized and publicly accessible network without any central authority. The entire enterprise is decentralized meaning no government or financial bank or company can revoke an account on a blockchain network, shut down the network, or prevent someone from using it.

This post provides an overview of digital assets by defining what a digital asset is and why digital asset planning is so important during the estate planning process.

Digital asset defined

A digital asset is an electronic record in which an individual has a right or an interest. Presently, the term digital asset, does not include the underlying asset or liability unless that asset or liability is itself an electronic record.

As estate planning attorneys, we often meet prospective clients who understand the benefits of making a will and why it needs to be part of their estate plan. Their initial interest in a consultation is understanding the mechanics of the process – how is a will actually prepared. There are many do-it-yourself will forms available for sale in the office products section of many retailers and online. The problem with these options is that they do not offer legal advice related to how you should prepare your will. Because these options try to create a one-size fits all document, if your property or assets don’t fit within one of the categories, you are back to square one trying to understand how your will should be prepared.

A will is the legal method to gift heirs, friends, staff, and institutions upon your death. You will have to decide what property or asset to gift and to whom. As the world becomes more digital it is important to understand what a digital asset is and know whether it can be gifted or bequeathed in a will. Here, is what you need to know about making will gifts.

Four types of will gifts

This is the second part of a series on the estate administration process and tasks an executor must perform in order to carry out the wishes of the deceased person’s will. The first step is obtaining a declaration that the will is valid. The second step is having the Surrogate’s Court appoint the executor, as designated in the will, as the legal administrator of the estate. 

For decades now, we have been told that we are living in the digital age. Some early adopters gadgeted up and have a digital life rich with videos, texts, photos, online accounts, and even friends that exist in digital spaces. Many wills are absolutely silent as to the existence of digital assets. Nonetheless, in administering an estate, the executor will be tasked with investigating whether the deceased person maintained any digital assets and then disposing of those digital assets. This post will discuss the special problem of digital assets when the will is silent as to their existence.  

The mailbox chronicles

Every week it seems there is a new health alert about a new study of a common food item that directly contradicts nutritional norms. The latest to catch my attention was a story in USA Today linking hot tea to esophageal cancer. It starts with the headline, “Drink Hot Tea at Your Own Risk: New Study is Latest to Show Link to Esophageal Cancer.”

The summary of the study is much worse. The study in question was published in the International Journal of Cancer. It tracked the habits of more than 50,000 tea drinkers in a province of Iran. Over a 10-year period, 317 new cases of esophageal cancer were diagnosed. The study found that those who drank more than 24 ounces of tea a day at a temperature of 140 degrees Fahrenheit had a 90 percent higher risk for esophageal cancer.

From my experience, people either drink coffee or tea. Very few enjoy both equally. Iran happens to be a tea-drinking country. It is ranked 4th in worldwide consumption of tea, behind Turkey, Ireland, and the United Kingdom, the top three tea drinkers in the world. While this specific habit may be true in the lives of the 317 people that were diagnosed with esophageal cancer so is the province they live in. Could the environment have been a contributing factor? We will never know the answer to such a question because it was not studied.

Being left out of your parent’s will is a difficult pill to swallow. People are free to dispose of their property through a will as they see fit. Only spouses have some statutory protection against being cut-off from the other spouse’s will. If you are the child that has been cut-off from a parent’s will, what should you do? There are time sensitive steps you should take to understand what has happened, and if possible, contest the will. Note, that only family has the power to contest a will.

Obtain a copy of the will

The deceased person or testator who created the will has the final say on who gets what of his or her property. If the will has changed, it could be perfectly legitimate or have been done under duress or diminished mental capacity. The executor will be able to provide you with any previous versions of the will and a list of assets. If you cannot obtain a copy of the will before it enters probate, you are able to receive a copy from the probate or surrogate’s court.