Archive for the ‘Estate Planning’ Category

What happens to my social media if something happens to me?

Tuesday, September 26th, 2017
This year, the Uniform Fiduciary Access to Digital Assets Act went into effect in Virginia.  This Act has important privacy concerns for users of social media, emails, and other digital assets.  The bill allows for fiduciaries to manage digital property.  Electronic communications, however, are restricted unless the user consents to such access prior to death or incapacity, or if ordered by a court.
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Who are fiduciaries?

Fiduciaries include agents under a power of attorney, trustees acting under a trust, and executors and administrators of a deceased individual’s estate.  Court appointed guardian and conservators are also fiduciaries.

What are digital assets?

Digital assets are electronic records in which an individual has a right or interest.  It does not include the device on which the records are stored.  Virtual currency, web domains, and computer files are examples of digital assets.

What are electronic communications?

Electronic communications are communications in whole or in part by wire, radio, electromagnetic, photoelectronic, or photooptic system.  It includes text messages, e-mails, and social media messages.  It does not include wire or oral communications, tone-only pagers, communications of tracking devices, or transfer of funds by a financial institution. 

How can I consent or prohibit access?

Consent, or prohibition, of access may be given in the power of attorney, will, or trust naming the fiduciary. 
Some custodians have a terms-of-service or online tools that allow a user to designate a recipient or prohibit disclosure to named persons.  The use of such an online tool will override any contrary directions in the user’s power of attorney, trust, last will and testament, or other writing.  The written consent or prohibition in power of attorney, trust, last will and testament, or other writing, however, overrides a terms-of-service agreement that does not require the user to take affirmative action other than a generic assent to the terms of service. 
In other words, the online tool provided by a custodian of electronic communications or assets will be honored if the user takes an extra step to consent to or prohibit disclosure, or consents by some means other than the generic “I accept terms and conditions” button.  If the online tool does not have this affirmative action, then the estate planning tools can be used to consent or prohibit access. 

Plan for the unexpected

Monday, December 26th, 2016

We learned today that another celebrity died.  This one was very unexpected and it took everyone by surprise.  That can happen to us too!

So what can we do to plan for the unexpected?

We can make an appointment with our Estate Planning Attorney to find out what sort of plan we need.  Do we need a Will?  Should we have a Trust?  If we have a trust, are we sure that it is funded correctly?  Do we need to re-title our real estate and other assets so that the probate process can be minimized?  Do we want to make contributions to our favorite charity?  Do we have children or pets that we want to ensure are taken care of properly? (and no, the answers are not always the same for everyone)

These are all questions that should be asked and answered by a qualified Estate Planning attorney.

Remember that the Estate Plan is not for you, once you have passed away you are no longer worried about the details.  The Estate Plan is to help your family and loved ones carry on after you are gone.  This is the Plan of how you want your assets to be distributed after you are no longer able to handle these arrangements yourself.

If you have any questions or want more information about Estate Planning, please contact Beavers Law, P.C. at 757-234-4650 to schedule a consultation with one of our attorneys.

Online legal services — buyer beware!

Wednesday, July 30th, 2014

Anyone who does a little online research about making a will inevitably arrives at one or more websites that advertise “do-it-yourself” wills. These websites sell a form for just a fraction of the cost of hiring an attorney to make a will for you. When you think you know who you want to leave all of your stuff to when you die, it’s easy to think that the will you buy online is all you need.

However, a recent case from Florida reveals the limits of online legal forms and how they are no replacement for assistance from a well-trained attorney. In 2004 Ann Aldrich created her will using a product called “E-Z Legal Form.” In the will, she left her house, car, retirement account, bank account, and life insurance account to her sister. The will also stated that if Ann’s sister predeceased Ann, then Ann’s brother was to inherit all of the listed property. Ann’s sister did die before her, and left Ann real estate and cash. Unfortunately, the will didn’t say who was to inherit any of Ann’s property that she acquired after she made the will in 2004.

Furthermore, as often happens with  problems in wills and other estate planning documents, the problem wasn’t discovered until it was too late. When Ann died in 2009, there was a dispute about who would inherit the property Ann inherited from her deceased sister. Ann’s brother argued that Ann’s intent was for him to inherit everything – after all, he was the only one named in the will after the predeceased sister. But Ann’s nieces believed that because Ann listed the specific property for the brother to inherit, any property not specifically listed in the will should not be distributed through the will.

Although Ann left a note with her will that seemed to indicate her desire to leave “all of her worldly possessions” to her brother, the Florida courts determined that the note was not a valid codicil to Ann’s will. Therefore, because Ann’s will mentioned specific items of property and did not mentioned all of her property, then the property she acquired after 2004 passed by intestacy. Even though Ann did not provide any bequest to her nieces her will, under Florida intestacy law, they received a portion of Ann’s estate.

One of the justices of the Florida Supreme Court noted “that although this is the correct result under Florida’s probate law, this result does not effectuate Ms. Aldrich’s true intent.”

If Ann Aldrich’s will was contested in Virginia, it is likely that a Virginia court would reach the same result, since the laws regarding interpretation of wills in Florida are similar to the laws in Virginia.

What is troubling is that Ann could have saved all of this trouble by getting the advice of a competent attorney! Not only did Ann’s property go to people she didn’t intend to receive it, but it took nearly five years of litigation between family members that ultimately ended up in the state Supreme Court. As the court noted, Ann Aldrich’s estate serves as “a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.”

Kristina Beavers, Attorney at Law is a full-service law firm that helps clients create the estate plan they need to fulfill their wishes. A good estate planning attorney does more than just draft documents – she will meet with clients before and after creating their documents to make sure their documents will fulfill their intent, protect them, their beneficiaries, and their assets. A good estate planning attorney knows that no estate plan is “one size fits all” and knows just how to tailor the plan to every client’s needs.

If you have questions about your own estate plan, if you are concerned that a loved one’s do-it-yourself estate plan is not valid or inadequate for their needs, contact Kristina Beavers, Attorney at Law.

Does Mom (or Dad) seem to be slowing down?

Thursday, December 26th, 2013

I love holidays!  I love the lights and the colors and the smells and the gathering of family and friends.  I look forward to each year with anticipation and excitement.

But holidays are also a way of keeping track of the passing years.  It seems like just yesterday I was sneaking down the stairs to see what Santa had delivered.  However, it’s been a lot of years since I was good at sneaking anywhere!

Sometimes it is easier to tell when a parent is losing his or her edge when we only see them on the holiday.  When we talk on the phone, we don’t see the extra time it takes for them to get out of a chair.  And perhaps we have never noticed before that there are times when they go into a room and seem to forget why they went there.

Now might be a good time to talk with your parent about making sure they have all of their estate planning documents in place and current.

Most people are confident that they need a Will to distribute their ‘stuff’ after their death, but what about the other documents that will help them as they get older?

A General Durable Power of Attorney is one very valuable document that must be signed while the person has the cognitive ability to do so.  A Medical Directive (also known as a ‘living will’) is another.

These documents can go a long way to improve the quality of life of our parents (or ourselves).  They also make it easier for those family members that will need to help the elders in our lives.

And at this time of year, when we are all thinking about gifts, perhaps we should consider the gift of peace of mind….for ourselves and for our families.

We would love to meet with you and discuss the various parts of an estate plan and how we can help you achieve a little more peace of mind.  Please consider calling us at 757-234-4650 to schedule an estate planning consultation.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

I have my dead mom’s Power Of Attorney, can I sell her house?

Saturday, November 9th, 2013

I have had a few questions lately from people who say they have a Power Of Attorney for their parent and the parent recently died.  Usually, they want to know if they can use that Power Of Attorney to sell their parent’s house.

A Power Of Attorney allows the agent to do anything that the principal can do.  In the situation above, the child was named as the agent and the parent was the principal.

If we think about it logically, a principal can’t do anything after they have died, and that is exactly what happens with the Power Of Attorney.  It dies with the principal.

The next question is ‘what happens to the house?’  That would depend.

If the house was deeded with some sort of survivorship option, then the house would belong to the survivor automatically and would not be considered as part of the deceased’s estate.

If there was a Will, the Will would describe what would happen to assets in the deceased’s estate, including the house if that was part of the estate.

If there was not a Will, the statutes covering intestate (without a Will) division of property would control.  In Virginia, the house would then go to the legal heirs of the decedent.

The Virginia probate process is relatively easy in comparison to some other states.  You can contact the Clerk of the Circuit Court in the jurisdiction (city or county) where the deceased lived and the probate clerk can often be of great assistance.  Or, you can contact a probate attorney to help with the situation.

But remember that after the person dies, the Power Of Attorney terminates automatically and is no longer effective at all.  Having a complete Estate Plan can help eliminate this problem situation.

If you have any questions about this or any other legal matter, please contact the office at 757-234-4650 to schedule a consultation.