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
Most people should have a will. Wills are the legal mechanism for distributing property, naming guardians for children and exceptional individuals, and cancelling out debts, among other tasks. Having a will guarantees that you, rather than New York State, decide who gets your property and how your affairs would be wound down after you die.
In this series, we will explore all things that get done after a person dies to ensure that his or her final wishes are carried out in accordance with their will. Many people die without a will. There are laws in those instances too, that govern the distribution of property when individuals die without a will. The legal term for situations like that is intestacy. Someone who leaves a will before they die is legally known as the testator; while someone who dies without leaving a will is legally known as intestate. This series will be discussing testators and the distribution of property pursuant to a will only.
Understanding the language of probate
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.
On April 5, 2019, Kathy Lee Gifford, the co-host of the fourth hour of the Today Show retired after 25-years working in daytime television. In an interview in AARP Magazine, she reflects on loss and loneliness. She states,
“If you’re not careful, what you’ve lost in life can define you. It’s so much better to be defined by what you still have, it’s just healthier. I’m making big changes in my life because I need to, really big changes that are feeding my soul. Otherwise, despair sets in and loneliness can be crippling.” | Kathy Lee Gifford
In the article, Ms. Gifford describes being a widow, losing her mother, and becoming an empty nester, all within months of each other. From a life full of others, she now finds herself home alone. To emerge from this cocoon, she next turns her attention to acting and singing.
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.
I recently went to the emergency room at my local hospital because I was experiencing severe flank pain. I thought it was my appendix, but instead I was diagnosed with kidney stones. That wasn’t the most unpleasant thing to occur to me on that very painful night.
I arrived at the emergency room at 9:30 PM and was discharged the next morning at 10:00 AM. During those nine-in-a-half hours I was attended by eight different doctors. I never received a status report from the same doctor twice. At first, I thought it was a shift change, but then that would be two to three doctors at most. Eight seemed like something was out of order.
Three days later, I was in the waiting room of the kidney stone specialist’s office waiting for my appointment with Dr. X, a female doctor. I am ushered into the examination room by the medical assistant who takes down my chief complaint and checks my vitals. A short while later there is a knock on the door, and in enter three people that look like doctors, but were all men.
End of life planning is very difficult. On the one hand, you must understand what your assets are and contemplate how to dispose of them after your death in a way that is meaningful to you and the people or organizations you gift. On the other hand, you must identify your standard of medical care and treatment and be able to communicate it to a responsible person so that if and when you lose mental capacities and capabilities, your actual wishes are followed.
Even the best-laid plans can leave you vulnerable and at the mercy of the people around you – spouses or partners, children, and business associates – before you die. An estate plan does not protect someone before he or she dies.
Financial mismanagement concerns
Mental illness is hard to spot in people. This is especially true for seniors. Part of the difficulty with identifying who may be suffering from a mental illness is the social stigma associated with mental illnesses and treatment for mental illnesses. If you yourself are experiencing cognitive decline because of aging or an underlying illness like Alzheimer’s Disease, it may be up to your close friends and family members to identify a potential problem and seek appropriate medical advice from a mental health provider.
1 in 5 adults aged 55 or order have had a mental health concern
The U.S. Centers for Disease Control and Prevention (CDC) reports that over 20% of adults aged 55 years or older have had a mental health concern but only two-thirds of this group have received treatment.
New York Estate Planning & Elder Law Blog