Digital Assets

5 Topics To Discuss Around the Thanksgiving Table

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Family gatherings for the holidays are traditionally a time of celebration, fun, and family time. However, if you have a family member who is sick, incapacitated, or who has passed away, those gatherings can feel a lot less festive. 

Below are five important topics to discuss with parents, grandparents or any person for whom you may be the responsible decision-maker in the future. 

  1. Digital assets: An often-overlooked aspect of today’s estate planning is making sure that a trusted individual knows where to find your online information, such as your usernames, passwords, and your online accounts.  If you are concerned about the security of your computer, store this information the old-fashion way by writing it on a piece of paper.  In our office, we provide clients with a Digital Assets Memorandum, which is a handy tool for organizing and memorializing this type of information. It can be stored with your estate plan documents for easy access or maintained electronically. Your family will be grateful to have this information if you become incapacitated or when you pass away.
  2. Beneficiaries for Retirement Accounts: While you are sitting around the Thanksgiving table with your family, consider the topic of naming beneficiaries on assets such as retirement accounts. Naming beneficiaries on IRAs and employer retirement plans is easy to do and doing so will not only ensure that these assets pass to your intended beneficiaries but will avoid the need to probate these assets.  If no one is named, you should name a beneficiary immediately. Make sure to re-evaluate your beneficiary designations on your retirement accounts and ensure those are still the people you wish to benefit. Seeing everyone at the table can be a great reminder of who you currently have as beneficiaries and if you want to make any changes.
  3. Health Care Documents: While everyone loves a good game of backyard football after the Thanksgiving meal, injuries can occur and this can lead to chaos and confusion if someone needs treatment. All adults should have a HIPAA Authorization and Health Care Proxy. Sharing copies of these documents with your appointed agents and storing them on your phone so they are readily available in an emergency situation (such as needing to rush someone to the hospital if they injure themselves on the football field for the post-Thanksgiving game), will ensure decisions can be made in an emergency.
  4. Tangible personal property: Believe it or not, the personal property items are often a source of conflict during estate settlement. Personal property includes items such as jewelry, antiques, art, and other ’stuff”. If you have something special, such as a carving knife for the turkey or a gravy boat that has been passed through your family for generations, you should designate the person to receive that item so there is no fighting over that family heirloom later on.
  5. Updating Your Estate Plan: The past couple of years have been pretty crazy and a lot of families have not had the opportunity to gather around the table and see one another for the holidays. This year, if you are able to spend Thanksgiving with your family, you should talk about whether your family members have estate plans in place and if so, how long it is since they have been updated. Now that the world is opening back up and we are able to come together, it is a great time to remind family members if they are your appointed fiduciaries and make sure they are still able to fill that role for you (and that they are still the right people for you).

Thanksgiving is a time to be grateful and to celebrate with loved ones.  It is also the perfect time to talk to one another in-person about these topics not only because these are important but because they also might be easier to talk about over a pumpkin pie. If we can help you with your estate planning, please do not hesitate to contact our office and set up a time to speak with one of our attorneys.

November, 2022

© 2022 Samuel, Sayward & Baler LLC

Digital Estate Planning – It’s Time to Plan for your Digital Assets

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In the year and a half since I last wrote about planning for digital assets not much has changed in Massachusetts.  Our state is still one of a handful of states that has not enacted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), although there is a bill pending in the Massachusetts legislature that would do so.  This bill would clarify the authority your appointed fiduciaries (such as your agent under your Power of Attorney, or the Personal Representative of your estate) would have to access your digital assets if you become incapacitated or pass away.

What has changed in the past year and a half is that we all continue to be more dependent upon technology, and our digital footprint increases with each passing day.  We continue to use social media, online photo and document storage, and email on a daily basis, increasing the digital “assets” we have stored in these accounts.  The importance of the assets stored online has also increased – perhaps this is the only place you now store vacation photos (rather than putting them in your photo album), or perhaps you only receive your bank or investment account statements online rather than in the mail. This online footprint will only continue to grow, as will the need for your estate plan to address your digital assets.

The more digital assets become mainstream, the more important it is to plan for access to these assets by others if you are not able to do so. To the extent these accounts contain information that you would like someone to be able to access after your death or incapacity, it is necessary to provide the appropriate authority for such access as well as instructions about what you want done with these “assets.”  For some types of these assets, digital estate planning strategies are is crucial to prevent financial loss (i.e. the loss of a domain name used for business purposes, bill payment, access to investment account information), to protect sensitive personal information (on-line dating websites), to avoid identity theft, and to allow access to valuable assets (think bitcoin or an author’s manuscript).

Here are some tips to manage your digital assets until Massachusetts law catches up with the rest of the country and we have a clear roadmap for access for Massachusetts fiduciaries:

  • Review the terms of service agreements for the online accounts you use. Understand what those agreements provide about access, and if and how others can be given permission to access your account. Have a qualified estate planning attorney review these on your behalf if you have questions.
  • If an online entity offers a way for you to give permission or access to your digital assets stored with that company, pay attention and follow the directions. For example, Facebook allows you to designate a Legacy Contact who can manage your account after you die, or you can choose to have your account deleted if you pass away. Google allows you to control what happens to your account through their Inactive Account Manager feature. Here you can designate when your account will be considered inactive, what should happen to your Google account in that event, and designate one or more people who will have access to whatever portions of your Google account you choose.
  • Update your estate plan documents, specifically your Power of Attorney, Will and Trust, to ensure those documents grant express permission for the fiduciaries named in those documents to access your digital assets, and express direction regarding what should be done with specific digital assets at death. In our office, we include express permission for access in these documents.
  • Keep a current list of your usernames and passwords in an online password manager or recorded in another way where a trusted person can access this information if needed, and let that person know where this information is located. As a start, we provide our clients with a Digital Assets Memorandum that can be used to record access information and instructions about digital assets.

Keep in mind that if you have not used an online entity’s prescribed method of giving someone permission to access your account, and do not have express permission and direction in your estate plan documents, the company’s Terms of Service Agreement will govern. In such a case, you and your digital assets are at the mercy of the online provider, which may not allow access following your death or incapacity. Don’t fail your loved ones with poor digital legacy planning.

March 2019

© 2019 Samuel, Sayward & Baler LLC

Wills • Trusts • Elder Law • Long-Term Care Planning • Estates

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