Kent Larsson writes about the proper use of wills, advance directives, trusts, and other estate planning tools, and how how they play a vital role in you receiving proper medical care and helping you to preserve and pass on your assets to your loved ones.
Families sometimes face a challenge because of federal law.
A federal law called the Stored Communications Act can make it difficult for families to retrieve digital information when someone passes away, according to the Wills, Trusts & Estates Prof Blog in "Court Holds Personal Representative May Provide Lawful Consent Under Stored Communications Act."
The Stored Communications Act is essentially a privacy law.
It prevents providers from giving access to some user personal data without the consent of the user.
When someone passes away, one of the many things families often want to do is gain access to the digital accounts the deceased had. These include emails, financial accounts and social media accounts.
Sometimes access is wanted, so important financial and business transactions can be completed, if necessary. Other times the families would just like to have access for their own information and to close the accounts.
The terms of services of most digital providers make it difficult to gain access.
In a recent Massachusetts court case, Yahoo cited the act as the reason it could not give access to emails sought by the personal representative of a deceased account holder's estate.
The court declared that, under the act, the personal representative could give the necessary consent to gain access to the data. However, the court did not make this mandatory. The court instead decided that it was still up to the company whether to comply with the request.
Many states are attempting to make it easier to access digital information after someone passes away.
An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and work with you to make your digital information available to your family when the time is right.
Reference: Wills, Trusts & Estates Prof Blog (Oct. 20, 2017) "Court Holds Personal Representative May Provide Lawful Consent Under Stored Communications Act."
A will may be cheaper than a trust now. However, that may not be the case in the long run.
Many people decide on wills instead of trusts to save time and money. The problem with that thinking is that a will is more expensive overall than a trust, according to the Times Herald-Record in "Trusts will cost you less at settlement time."
When someone passes away, someone must then administer either the will or the trust to make sure that property is distributed as the deceased directed.
Using a will requires going to probate court and having an executor, who can charge for the service to go through the process of administering the estate.
On the other hand, using a trust means that a trustee, who can also charge for the service, is required to distribute everything.
The trustee normally does not have to go to court, which makes it a much faster process. The speed means that the trustee may charge much less overall.
In the end, the trustee may be a lot cheaper than any money that might have been saved by getting a will instead of a trust.
An estate planning attorney can guide you in creating an estate plan that meets your unique circumstances.
Reference: Times Herald-Record (August 2, 2017) "Trusts will cost you less at settlement time."
People cannot inherit assets from people they have killed, but there are exceptions.
“Slayer Statutes” have their limitations, according to the Wills, Trusts & Estates Prof Blog in "Court Determines that Slayer Statute is Not Applicable in Self-Defense Case."
We have long had laws that are designed to prevent people from inheriting assets from people they have killed. These laws are known as "Slayer Statutes."
They generally state that people cannot inherit from those they are responsible for killing.
In the case discussed in the article, it was not clear what led to the death of the holder of a life insurance policy. The sole beneficiary of the policy was involved in the death and had given conflicting statements.
The beneficiary was not convicted of murder and claimed self-defense.
The deceased's sister sued to claim the policy, but the court decided that since there was some merit to the self-defense claim, the slayer statute did not apply.
Reference: Wills, Trusts & Estates Prof Blog (April 11, 2017) "Court Determines that Slayer Statute is Not Applicable in Self-Defense Case."
Considerations are necessary, if you plan to leave that summer home to the kids.
While the children may have fond memories of the family vacation home, they may not be able to afford it or even want it after you pass, according to the Globe and Mail in "How to keep the cottage in the family."
The article has a Canadian base, but the following considerations are likely to be necessary in the U.S. as well:
• Consider any tax implications for your estate and children. Both federal and state estate taxes might need to be paid as well as property taxes. It is important to ensure that money is available to pay those taxes.
• You might want to use a trust to pass your vacation home down to your family, especially if you have more than one child. A trust can preserve the property for generations and can also take care of any maintenance and property taxes.
• Make sure that your children want the vacation home. One or more of your children might have good reasons for not wanting it and you may need to equalize your estate to give them something else.
Reference: Globe and Mail (April 11, 2017) "How to keep the cottage in the family."
The law for in vitro fertilization is still adapting, as the world adjusts to new technological advances.
The law in Spain only allows genetic material to be used for 12 months after a person has passed away and this can create some problems, according to FOX News in "Judge allows woman to undergo in vitro fertilization with dead husband's sperm."
The story begins when a Spanish man undergoing cancer treatment that could render him infertile, decided to freeze his sperm for possible later use by his partner. After the treatment, the couple started the process of in vitro fertilization but did not complete it, since his condition got worse and he passed away.
The day before he passed away, the pair were married.
After his death, the Spanish woman unsuccessfully attempted in vitro fertilization four times. The clinic refused her a fifth attempt without a court order.
The interesting aspect of this case is that the government chose not to argue in court on legal grounds that the woman should not be able use the sperm. Instead, the government argued on the moral grounds that it was impossible to know whether the man would still want the child or even if he would still want to be married to the woman, if he were still alive.
The government took the position that the man could not consent to having a child, but the judge was not persuaded and ruled in favor of the woman.
Similar cases are expected to appear with greater frequency and present a challenge to current estate law.
Reference: FOX News (March 23, 2017) "Judge allows woman to undergo in vitro fertilization with dead husband's sperm."