Archive for the ‘Probate’ 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. 

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.