Digital Assets Need to Be Protected In Estate Plans
Most people have an extensive network of digital relationships with retailers, financial institutions and even government agencies. Companies and institutions, from household utilities to grocery delivery services have invested millions in making it easier for consumers to do everything online—and the coronavirus has made our online lives take a giant leap. As a result, explains the article “Supporting Your Clients’ Digital Legacy” from Bloomberg Tax, practically all estates now include digital assets, a new class of assets that hold both financial and sentimental value.
In the last year, there has been a growing number of reports of the number of profiles of people who have died but whose pages are still alive on Facebook, Linked In and similar platforms. Taking down profiles, preserving photos and gaining access to URLs are all part of managing a digital footprint that needs to be planned for as part of an estate plan.
There are a number of laws that could impact a user’s digital estate during life and death. Depending upon the asset and how it is used, determines what happens to it after the owner dies. Fiduciary access laws outline what the executor or attorney is allowed to do with digital assets, and the law varies from one country to another. In the US, almost all states have adopted a version of RUFADAA, the law created by the U.S. Uniform Law Commission. However, all digital assets are also subject to the Terms of Service Agreement (TOSAs) that we click on when signing up for a new app or software. The TOSA may not permit anyone but the account owner to gain access to the account or the assets in the account.
Digital assets are virtual and may be difficult to find without a paper trail. Leaving passwords for the fiduciary seems like the simple solution, but passwords don’t convey user wishes. What if the executor tries to get into an account and is blocked? Unauthorized access, even with a password, is still violating the terms of the TOSAs.
People need to plan for digital assets, just as they do any other asset. Here are some of the questions to consider:
What will happen to digital assets with financial value, like loyalty points, travel rewards, cryptocurrency, gaming tokens or the digital assets of a business?
Who will be able to get digital assets with sentimental value, like photos, videos and social media accounts?
What about privacy and cybersecurity concerns, and identity theft?
What will happen to your digital assets? Facebook and Google offer Legacy Contact and Inactive Manager, online tools they provide to designate third-party account access. Some, but not many, other online platforms have similar tools in place. The best way, for now, may be to make a list of all of your digital accounts and look through them for death or incapacity instructions. It may not be a complete solution, but it’s at least a start.
100 Things to Do While Stuck Inside Due to a Pandemic
As concerts are postponed, sporting events are canceled, schools are closed and tourist hot spots are shut down, experts recommend that even those who show no sign of illness stay home during this time of global pandemic. Following are 100 things to do while stuck inside due to a pandemic.
That’s right: It’s advised that you self-quarantine.
Although remaining inside is a good way to protect yourself and others from the coronavirus, and is an important measure to help “flatten the curve” of daily cases that put pressure on our health care system, it could lead to a lesser evil: boredom and stir craziness.
What’s there to do while stuck indoors? We’ve compiled 100 suggestions to help make your time quarantined as interesting – and perhaps even as productive – as possible.
2. Start a journal or blog. Sure, it can be about the coronavirus, but it could also be about a specific interest from chess to cheese.
3. If it won’t bother your neighbors: Dust off that old instrument and practice.
5. Write poetry. Perhaps you can craft a haiku for Mother’s Day, or something without a specific structure. Just try it!
6. Watch all the really long movies you’ve avoided until now.
7. Download Duolingo, or a similar app, and teach yourself a foreign language.
9. Meditate. Try lying down with your eyes closed, palms up and while focusing on your breath. Or spend 20 minutes sitting crosslegged and repeat a soothing word to yourself in your head. (The latter is more like transcendental meditation.)
10. Face masks, moisturizer, oh my! Treat yourself to a 10-step skin care routine you don’t have time for during a normal work week.
A Letter of Instruction Can Spare Your Heirs Great Stress
While it is important to have an updated estate plan, there is a lot of information that your heirs should know that doesn’t necessarily fit into a will, trust or other components of an estate plan. The solution is a letter of instruction, which can provide your heirs with guidance if you die or become incapacitated.
A letter of instruction is a legally non-binding document that gives your heirs information crucial to helping them tie up your affairs. Without such a letter, it can be easy for heirs to miss important items or become overwhelmed trying to sort through all the documents you left behind. The following are some items that can be included in a letter:
A list of people to contact when you die and a list of beneficiaries of your estate plan
The location of important documents, such as your will, insurance policies, financial statements, deeds, and birth certificate
A list of assets, such as bank accounts, investment accounts, insurance policies, real estate holdings, and military benefits
Passwords and PIN numbers for online accounts
The location of any safe deposit boxes
A list of contact information for lawyers, financial planners, brokers, tax preparers, and insurance agents
A list of credit card accounts and other debts
A list of organizations that you belong to that should be notified in the event of your death (for example, professional organizations or boards)
Instructions for a funeral or memorial service
Instructions for distribution of sentimental personal items
A personal message to family members
Once the letter is written, be sure to store it in an easily accessible place and to tell your family about it. You should check it once a year to make sure it stays up-to-date.
Gifting a house outright to an adult child or adding them to the property’s deed may avoid the hassle of probate, but doing so may bring along its own slew of issues. These problems range from a potentially large tax bill to the house being in danger if the child files for bankruptcy.
Sometimes parents transfer a home to their child to try to qualify for Medicaid, the government program that pays health care and nursing home bills for the indigent. But gifts or transfers made within five years of applying for Medicaid can lead to a penalty period when seniors are disqualified from receiving benefits.
If an adult child is gifted a house through inheritance or a will, they will also get a “step-up in tax basis.” Meaning the value of the house upon the conveyance will not be based on the date they acquired it, but rather when the previous owner acquired it. Kenneth Robinson of Rocky River, Ohio had a client that received his mother’s house as a gift – against his advice – prior to the mother’s death. The mother purchased the house in 1976 for $16,000, but the son acquired the property with a market value of $200,000 with a tax bill of $32,000 because of the $184,000 gain.
However, Section 2036 of the Internal Revenue Code says that if the mother retained a “life interest” in the property, which includes the right to continue living there, the home would remain in her estate rather than be considered a completed gift. There are specific rules for what constitutes a life interest, including the power to determine what happens to the house and liability for its bills. The executor of the person would then file gift tax return on the deceased’s behalf to show that the recipient was given a remainder interest, or the right to inherit at the person’s death.
As we age, changes to our body, our health, our financial picture, and our family is ever-evolving. When we were young, we didn’t worry about infirmity, incapacity, or how we want our estates managed. But time marches on and those issues become the forefront of our lives. Being an elder law attorney means using our knowledge of the legal issue to help aging or disabled clients find solutions to problems as they arise and formulate a plan to avoid problems in the future. The work we do focuses on the needs of the client and may or may not always involve a legal solution.
Being an elder law attorney means we must have a working knowledge of many areas of the law, such as estate planning, asset protection, Medicare, Medicaid, Social Security, Supplemental Security Income (SSI), Veterans Benefits, long term health care insurance, guardianship, special needs trusts and disability planning, probate, trust administration, elder abuse and elder exploitation, nursing home discharge issues, patient rights, retirement benefits, health law, and mental health law. It’s a long list but most clients have issues that span across many of those areas and planning can be complex.
Being an elder law attorney means we practice using a holistic approach, thinking about the issue at hand, but also considering future issues that might arise and how to plan for them. Our job is to point out the potential “holes in the road” that may come up, and help our clients stay out of those holes. In addition, we must consider the financial and mental well-being of the family as a whole, which means having knowledge of community resources to provide support to those with non-legal needs such as caregiver stress or financial management.
Being an elder law attorney means we keep a box of tissues on our desks, provide adequate lighting for those with vision issues, decorate our offices with chairs that are easy to get in and out of, use a larger font on our websites, and only hire staff that are compassionate and have a genuine interest in the practice. Our clients may have hearing issues, and not technically savvy, so we must meet the client where he or she is comfortable, and communication is often done by “snail mail” rather than email or by phone.
Being an elder law attorney means that not all our clients are elderly. In my practice I serve special needs clients of all ages, from children to adults. My office must be wheelchair friendly and able to accommodate all family members who want to be involved in seeking solutions for their loved one, especially when the client is a child with special needs.
Being an elder law attorney means I must listen with a sympathetic ear, let my clients have time to tell their story, and not rush them to get to the issue at hand. This time is important not only for them but for me as well as it gives me a greater understanding of their needs and how I can help.
Being an elder law attorney means we go to hospitals, nursing homes, assisted living communities, and the client’s home. If a client can’t get to us, we go to them. Many times, being in their own home makes a difficult conversation a bit easier.
When choosing an elder law attorney look for someone who focuses his or her practice exclusively in the area of elder law, who has the expertise you need, the compassion to listen, and is willing to accommodate your needs before, during, and after the initial consultation.
This generous individual may be facing a number of legal and logistical hurdles, before assets in eight separate accounts can be passed to three relatives, says the article “Sorting through multiple inheritance accounts” from the Houston Chronicle. Does the heir need to speak with each of the investment companies? Would it make sense to combine all the assets into one account for the estate and then divide and distribute them from that one account?
If all the accounts were payable to this person upon the death of the brother, then the first thing is for the heir to contact each company and have all funds transferred to one account. It might be an already existing account in their name, or it may need to be a new account opened just for this purpose. The account could be at any of the brother’s investment firms, or it could be with a different firm.
If the accounts are not payable to the heir, but they are to be inherited as part of the brother’s estate, the estate must be probated before the funds can be claimed. In this case, it would be very helpful if the sole beneficiary is also the executor. This would put one person in charge of all of the work that needs to be done.
However, the person eventually will become the owner of all eight accounts. Once everything is in the heir’s name, then the assets can be distributed to the three relatives. There are some tax issues that must be addressed.
First, if the estate is large enough, it may owe federal estate taxes, which will diminish the size of the estate. The limit, if the brother died in 2020, is $11.58 million. If he died in an earlier year, the exemption will be considerably lower, and the estate and the executor may already be late in making federal tax payments. Penalties may apply, so a conversation with an estate planning attorney should take place as soon as possible.
If the brother lived in another state, there may be state estate or inheritance taxes owed to that state. While Texas does not have a state estate or inheritance tax, other states, like Pennsylvania, do. A consultation with an estate planning attorney can also answer this question.
When gifts are ultimately made to the three relatives, the first $15,000 given to each of them during a calendar year will be treated as a non-taxable gift. However, if any of the gifts exceed $15,000, the person will be using up their own $11.58 million exemption from gift and estate taxes. A gift tax return will need to be filed to report the gifts. If the heir is married, those numbers will likely double.
It may be possible to disclaim the inheritance, with the assets passing to the three relatives to whom the heir wishes to make these gifts. An experienced estate planning attorney will be able to work through the details to determine the best way to proceed with receiving and distributing the assets. Depending upon the size of the estate, there will be tax consequences that must be considered.
In a perfect world, a child would be raised by its parents. However, this isn’t always possible, and legally enforceable decisions must sometimes be made to name the person who is best positioned to look after a child.
Courts have the power to appoint guardians for adults and children. This is usually a person who is unable to make decisions for themselves.
It may be a disabled person, and guardians are appointed for children when parents consent to it, when their parental rights are removed by a court, or when both parents are dead or permanently incapacitated.
Guardians have duties as to both the protected person and their estate. The duties to the person include providing necessities, education and appropriate medical treatment, where necessary. As far as the estate of the protected person, the duties are to manage any funds properly and to spend them, pursuant to the protected person’s needs. Guardians must prepare an inventory of assets within 60 days of their appointment to the role.
Custody is only granted for children. When appointed, a custodian is given parental rights over the child. Guardianship does not bestow these rights.
A guardian is appointed to take care of a protected person and to safeguard their estate. Biological parents, if alive, keep their parental rights over the child.
To become a guardian, you must file a petition with the court. There will be a hearing on your application. You must present proof (from a doctor, for example) that guardianship is necessary under the circumstances.
Guardianship litigation can eb stressful, but it is frequently necessary, so engage an attorney to help you.
What are Some Good Estate Planning Ideas in the Pandemic?
With the COVID-19 pandemic, many people are looking to execute estate plans they’ve delayed in finalizing and signing. Others are ready to get going on their estate plans that they should’ve started years ago.
Most estate planning can be done at home. While you may be restricted from physically seeing your attorney, you can still create, update, or finalize your estate plan. Attorneys are working remotely and are available via email, telephone and video conferencing to help you.
Get your estate planning in order. The odds are you now have some time to consider the issues you’ve placed on the back burner for a long time. Leverage this time to address your estate planning.
New options for signing document. Many attorneys are approaching estate plan document signings on a case-by-case basis. You may be able to sign in the attorney’s office or at your home, while practicing social distancing and wearing gloves and masks. Some law firm are even offering drive-up will signings.
Some states now permit online notarization of certain types of documents.
These new laws allow for remote online notarization (RON), a process by which notarization is conducted via video conferencing. In this process, the signing party (the “principal”) must undergo an identity-proofing process that differs by state.
In most states, the principals are required to answer several personal questions. They also must show valid ID, which in many states, must be examined and verified by a third-party security service. Once the principal’s identity is confirmed, she signs the document with a digital signature. The remote online notary witnesses the document, by affixing an electronic seal as they stream the live, audio-visual conference.
Talk to an experienced estate planning attorney about how you should proceed with your estate planning, in light of this new (and hopefully temporary) reality.
At least, you can get all your documents organized and ready to sign when it is safe to venture outside.
If you have a parent living in an assisted living facility or a nursing home, or they’re at home, caregivers need to know how to explain the current coronavirus pandemic in an appropriate and clear manner—and in a way that protects and cares for your own personal health.
Long Island Weekly’s recent article entitled “Caregiving During The Coronavirus” explains that older adults often have more health complications, like heart disease, diabetes and hypertension. As a result, they’re more susceptible to the complications of the coronavirus. Review the recommendations of the Centers for Disease Control and Prevention (CDC) and World Health Organization (WHO) for protecting you and your family from exposure.
And although some people suffering from Alzheimer’s or dementia may not fully understand the complexity and severity that the COVID-19 pandemic is having on our communities, they can sense what’s happening. They can read your personal energy and can sense your stress. This may cause them to show more symptoms of anxiety, agitation, cognitive decline and confusion. Communicate as best you can to your parent frequently and clearly about what’s happening. While they may not need to have all the details, let them know that there’s a virus spreading within the community and that we need to wash our hands thoroughly and stay indoors.
For those still being cared for at home, take the necessary precautions as you’d do for yourself. Modify your grocery shopping trips, since stores are adding special senior hours, reschedule unnecessary doctor visits, stock up on needed medications and talk to your doctors about any concerns.
For those in a facility, understand the visitation policies, because many have adjusted their policies to limit or prohibit personal visitation. Ask the administration about visitation and what the care facility is doing to ensure your parent’s care.
Although you might be frustrated that your parent’s facility is limiting or cancelling visitation, remember that the new rules are designed to protect the residents. You may be able to schedule a time to speak with your mother or father on the phone every few days, or you can deliver food or items, like photos albums or other gifts to stay connected. Try to be reasonable and understand that these facilities may be understaffed.
Here are a few key points that may be helpful to get through this crisis:
Have a talk with your parent and with the facilities in which they’re living, so they can understand the new policies.
Be careful yourself. Take reasonable precautions for yourself and your family member.
Avoid public spaces. This includes routine, or non-essential doctor visits, grocery shopping and other visits.
Stay upbeat. Know the latest news and guidelines but try to remain calm, because your parent may sense your stress and reflect that.
Be reasonable and understanding and try your best in these uncertain times—for yourself and your loved one.
Caregivers May be Eligible for Paid Sick Leave Under Coronavirus Response Act
The U.S. Department of Labor (DOL) has issued regulations clarifying that people who have to take time off work to care for family members with disabilities may be eligible for the new paid sick leave protections enacted by Congress in the wake of the COVID-19 pandemic.
Until the pandemic, federal protections for employees seeking leave to care for family members or their own health was limited to the Family Medical Leave Act (FMLA), which guarantees certain employees 12 weeks of unpaid leave to care for family members. The Families First Coronavirus Response Act (FFCRA), signed into law March 18, 2020, by President Trump, amends the FMLA to provide two weeks of paid family and sick leave for certain employees. These provisions are temporary, with an expiration scheduled for December 31, 2020.
The new law contains numerous limitations. It exempts employers with more than 500 employees, as well as employers with fewer than 50 employees if the leave protections pose a “substantial risk” to the company. In terms of compensation, workers with COVID-19 are entitled to two weeks of paid sick leave at their regular pay rate. Other workers are entitled to two weeks of paid sick leave at two-thirds of their regular salary, up to a certain maximum, if they have a “qualifying need related to a public health emergency.”
Upon the FFCRA’s passage, disability rights advocates raised concerns about whether the law protected people who needed to temporarily leave a job to care for family members with disabilities whose regular services have been disrupted by the COVID-19 pandemic. DOL regulations implementing the FFCRA, published in the Federal Register on April 6, make clear that the paid leave will cover care for a son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider is unavailable, due to a public health emergency.
The FFCRA, however, did not expressly define ‘son and daughter.” Would it, as the earlier FMLA does, explicitly define “son and daughter” to not only include children under age 18, but also people of any age who “are incapable of self-care because of a mental or physical disability”?
To the relief of advocates, the implementing regulations explicitly state that employers should interpret the FFCRA and FMLA the same. In other words, family members caring for people with disabilities, even those over age 18, may be eligible for paid leave protections.
“The bill provides unprecedented paid leave benefits to American workers affected by the virus, while ensuring that businesses are reimbursed dollar-for-dollar,” DOL Secretary Eugene Scalia said in a news release.
Although a welcome step, many disability advocates still view the FFCRA as an incomplete set of protections.
“I am concerned that the rule is limited to parental caregivers,” Bethany Lilly, director of income policy at The Arc, told Disability Scoop. “We would like to see other family members included.”
Some states have enacted significantly more expansive sick leave protections than the federal government as a result of the pandemic. In New York State, for example, employers with more than 100 or more employees must provide 14 days of paid sick leave, employers with 10 to 99 employees or more than $1 million in business income must provide five paid sick days, and other employers, while not required to compensate for time off, must nonetheless provide job protections. California has passed a similar law.