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March 1, 2014 By Martha Burkhardt

Your Online Estate Plan

Recently, a friend and owner of an IT company (Michelle Herring of CMIT Solutions of St. Charles and Chesterfield), passed along a question she encountered. What do people do about their online accounts when estate planning?

First, I just have to say, I loved that she mentioned this. In a world where more and more of our world is online, it’s a real problem. Even for older families this presents a real issue. Mom now does all of her banking online and doesn’t receive paper billing. How do the kids know what bills are due and what’s already been paid? For those of younger generations constantly on Facebook or even LinkedIn, what happens to those accounts?

Unfortunately, this is the new frontier of estate planning, meaning the laws haven’t caught up with reality. Many (if not all) of the online accounts you use require you to accept a user agreement stating you will be the only person using the account. This means you’re technically violating your agreement with that company if you give another person your password.

Even more of an issue, many online entities have no set policy (and certainly not consistent across companies) of what happens after a user passes: Is a court order required? Can a trust access the account? Does a power of attorney give access?

Few websites truly plan for their user’s eventual (and guaranteed) non-use. There has been discussion that some online entities will or have settings that allow you to give another person access to your account if you don’t log in within a specific amount of time or other forms of estate planning within your online account. After some searching, I could not find these settings in a few of the bigger sites (feel free to share if you do).

So what do you do? There are a few options. Some practical and some not. First and probably the most “legal” (but also probably the least practical) is to keep a list of all your online accounts, so your estate can contact the company and follow the given procedures of that company (if there are any). But really, who has time to create a list and then the hassle of your estate trying to contact and comply with several (plus some) different companies.

Another option is to create a list of all of your accounts and passwords. Either written somewhere or in a document. Hopefully, you can figured out why I don’t recommend this. While it gives your estate access to your accounts, it may inadvertently give access to others as well.

The best solution I’ve seen so far (also recommended to me by CMIT Solutions… seriously, check them out) is to use a password storing cite such as LastPass or KeePass. These applications are secure mobile databases that allow you to store your passwords online on an encrypted site. Essentially, you only have to remember (or share) one password and you have a list of all your online accounts with the passwords. An added feature of LastPass (I installed it over the weekend) is that you don’t have to manually enter the list. As you visit the websites, LastPass will give you the option to save the site and the password.

All of these options have their downfall, but no matter how you plan for your online world, it’s important to consider and plan for as well.

Filed Under: Blog, Estate Plan Tagged With: Estate Plan, Executor, Online, Personal Representative, Power of Attorney, Trust

March 1, 2013 By Martha Burkhardt

Well, It’s Too Late Now…

As I was speaking to a good friend who lives out of state this week we were discussing estate planning; the purpose of various documents, costs, etc. However, because I’m not licensed in the state she lives in, the best advice I could give her was to talk to a local attorney who focuses on estate planning. Unfortunately, time was a factor here, and due to other factors, my friend felt an online service with estate planning forms was the best option. Now, in her situation, it really wasn’t that unfortunate, nothing’s come about (and hopefully won’t) that has caused her to need the documents. But it leads to an issue I’ve heard often.

I’ve been asked many times about inexpensive options regarding estate planning. Specifically, people love the idea of an online site that provides a do-it-yourself form with filling in the blanks. It’s normally, quick, easy, and extremely inexpensive when you’re comparing these forms to a real life attorney. However, as expected, the idea of these sites really does make me cringe.

There are many reasons I’m not a fan of online legal sites, but my top concern is that specifically with estate planning documents, the documents don’t go into effect until it’s too late to change them. For example, if you use a power of attorney from a website, and later go to use it because the person it was created for is unable to make decisions, and then find out its unenforceable, you’re stuck without a power of attorney because the creator is unable to make decisions! So if you use an online site without the benefit of an attorney to catch mistakes, you might not know until it’s very costly and time consuming to fix.

In addition, if there is a mistake a website doesn’t take the liability of that mistake, while many attorneys carry malpractice insurance and provide an additional level of assurance if that mistake does happen (though the chances are much less to begin with).

Another major concern I have with executing estate planning documents without an attorney regards the very specific requirements and formalities execution normally entails. There are requirements as to how many witnesses, who may not sign as a witness, notary publics, who must be present when signing, the language used regarding notaries and witnesses, and many, many more depending on the document. While the online sites give instructions on how to execute a document, they cannot physically be present when executing them the same way an attorney can.

gradpicAlong with this, estate planning documents are notorious for legalese: the legal language rarely decipherable, let alone understandable, outside of the legal profession. How is anyone supposed to fill out a document themselves, when it’s written in a different language? Finally, attorneys have the benefit of working with numerous clients and identifying issues many others would never recognize. As I was reminded multiple times throughout the three years of law school, law school teaches a person “to think like a lawyer.” I don’t know how to think like a car mechanic, but I do know how to think like an attorney and many times I’m able to bring up issues my clients are grateful to talk about, but have not though about before.

Often I hear the joke that a person doesn’t have an estate to plan (I’ll explain why this is incorrect at a different time). But if you’re concerned about assets and well-being enough to worry about any estate planning documents at all, you have plenty of assets to at least talk to an attorney! Many attorneys, including myself, offer free consultations and I would be more than happy to talk to anyone regarding an online will, power of attorney, or other estate planning document to make sure it’s sufficient. If you know of any family or friends who have taken the online form approach, please pass along this information!

Filed Under: Blog, Estate Plan, Trusts, Wills Tagged With: attorney, attorneys, Estate Plan, Online, Power of Attorney

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