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Recent advances in digital technology have made many aspects of our lives exponentially easier and more convenient. But at the same time, digital technology has also created some serious complications when it comes to estate planning. In fact, if you haven’t properly addressed your digital assets in your estate plan, there’s a good chance that most of those assets will be lost forever when you die.

Without the proper estate planning, just locating and accessing your digital assets can be a major headache—or even impossible—for your loved ones following your incapacity or death. And even if your loved ones can access your digital assets, in some cases, doing so may violate privacy laws or the terms of service governing your accounts. Plus, you may also have certain digital assets that you don’t want your loved ones to inherit, so you’ll need to take steps to restrict or limit access to those assets.

Indeed, there are several special considerations you should be aware of when including digital assets in your estate plan. Here we’ll discuss the most common types of digital assets, along with the current laws governing them, and then we’ll offer some practical tips to ensure your digital property is properly accounted for, managed, and passed on in the event of your incapacity or death.

Digital assets include a wide array of digital files and records that you have stored in the cloud, on smartphones and mobile devices, or on your computer. When it comes to estate planning, your digital assets will generally fall into two categories: those with financial value and those with sentimental value, which could mean far more to the people you love (and your future generations) than the assets with financial value.

Digital assets with financial value include cryptocurrency like Bitcoin or Ethereum, online payment accounts like PayPal or Venmo, loyalty program benefits like frequent flyer miles or credit card reward points, domain names, websites and blogs generating revenue, as well as other intellectual property like photos, videos, music, and writing that generate royalties. Such assets have real financial worth for your loved ones, not only in the immediate aftermath of your death or incapacity, but potentially for years to come.

Digital assets with sentimental value include email accounts, photos, video, music, publications, social media accounts, apps, and websites or blogs with no revenue potential. This type of property typically won’t be of any monetary value, but it can offer real sentimental value and comfort for your family following your death and inform future generations in ways you may not have considered.

As an example, I cherish an image of one of my ancestors from the 1920s, and I only wish I knew more about him to inform my own understanding of life. Imagine if your future generations can use your digital assets to learn from your experiences as a direct result of how you handle those assets in your estate plan.

Although you might not know it, you don’t own many of your digital assets at all. For example, you do own assets like cryptocurrency and PayPal accounts, so you can transfer ownership of these items in a will or trust. But when you purchase some digital property, such as Kindle e-books and iTunes music files, all you really own is a license to use it. And in many cases, that license is only for your personal use and is non-transferable.

Whether or not you can transfer this licensed property depends almost entirely on the account’s Terms of Service Agreements (TOSA) to which you agreed (or more likely, simply clicked a box without reading) upon opening the account. While many TOSA restricts access to accounts only to the original user, some allow access by heirs or executors in certain situations, while others say nothing at all about transferability.

Review the TOSA of your online accounts to see whether you own the asset itself or just a license to use it. If the TOSA states the asset is licensed, not owned, and offers no method for transferring your license, you’ll likely have no way to pass the asset to anyone else, even if it’s included in your estate plan.

To make matters even more complicated, though your loved ones may be able to access your digital assets if you’ve provided them with your account login and passwords, doing so may violate the TOSA and/or privacy laws. To legally access such accounts, your heirs will have to prove they have the legal authority to access them, a process which up until recently was a huge legal grey area.

The good news is most states have adopted laws that help clarify how your digital assets can be accessed and disposed of in the event of your death or incapacity.

Until very recently, there were no laws governing who could access your digital assets in the event of your incapacity or death. As a result, if you died without leaving your loved ones your usernames or passwords, the tech companies who controlled the platforms housing the assets would often delete the accounts or leave them sitting in a state of online limbo, inaccessible to your family and friends.

This gaping hole in the legal landscape caused considerable heartbreak for families looking to collect their loved one’s digital history, and it caused major frustration for the executors and trustees charged with cleaning up the estate—it also led to the loss of an untold amount of both tangible and intangible wealth. The federal government finally stepped in to find a solution for this problem starting in 2012, and by 2014, the Uniform Law Commission passed the Uniform Fiduciary Access to Digital Access Act (UFADAA).

A revised version of this law, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was passed in 2015, and as of March 2021, it has been adopted in all but four states. The law lays out specific guidelines under which fiduciaries, such as executors and trustees, can access your digital assets. The Act allows you to grant a fiduciary access to your digital accounts upon your death or incapacity, either by opting them in with an online tool furnished by the service provider or through your estate plan.

The Act offers three-tiers for prioritizing access. The first tier gives priority to the online provider’s access-authorization tool for handling accounts of a decedent. For example, Google’s “inactive account manager” tool lets you choose who can access and manage your account after you pass away. Facebook has a similar tool that allows you to designate someone as a “Legacy Contact” to manage your personal profile.

If an online tool is not available or if the decedent did not use it, the law’s second tier gives priority to directions given by the decedent in a will, trust, power of attorney, or other means. If no such instructions are provided, then the third tier stipulates the provider’s TOSA will govern access.

The bottom line: If you use the provider’s online tool—if one is available—and/or include instructions in your estate plan, your digital assets should be accessible per your wishes in most every state under this law. However, it’s important that you leave your fiduciary detailed instructions about how to access your accounts, including usernames and passwords, because without such information, your executor or trustee won’t be able to even access, much less manage, your digital assets if something happens to you.

Given that leaving detailed instructions is the best way to ensure your digital assets are managed in exactly the way you want when you die or if you become incapacitated, in the second part of this series, we’ll offer practical steps for properly including your digital assets in your estate plan. Meanwhile, contact us, as your Personal Family Lawyer®, if you have any questions about your digital property or how to include it in your estate plan.

Next week, we’ll continue with part two in this series, discussing the best ways to protect and preserve your digital assets using your estate plan.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Family Wealth Planning Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

In today’s society, the once-unbreakable bond between parent and child is being increasingly eroded. This disconnect is wreaking havoc on children’s psychological development, while making parents feel powerless to get through to their kids.

In more than 20 years of work and research, world-renowned family physician and child-development expert Gabor Maté discovered that a mix of social, economic, and cultural changes following WWII are a leading factor in this detachment. These changes have made it difficult for parents to provide the level of attention and intimacy needed for their relationship with their kids to remain strong.

And to fill this void, children are increasingly turning to their peer group for role models and mentors—often with disastrous results.

“They [children] are not manageable, teachable, or maturing because they no longer take their cues from us,” says Maté. “Instead, children are being brought up by other immature children who cannot possibly guide them to maturity.”

Last week, we discussed how a lack of intimacy in the parent-child relationship has led kids to bond more intensely with their peers. Here, we’ll look at the devastating effects these peer-centered relationships can have, and how parents can reclaim their role as the chief-orienting influence in their children’s lives.

For evidence of just how unhealthy it can be when a child’s relationship with his or her peers matters more than the one they have with their parents, Maté points to the dramatic rise in violence, suicide, and mass shootings among today’s youth.

“The crisis of the young has manifested ominously in the growing problem of bullying in the schools and, at its very extreme, in the murder of children by children,” says Maté. “Such tragedies are only the most visible eruptions of a widespread malaise, an aggressive streak rife in today’s youth culture.”

Maté found that in the vast majority of childhood suicides, the key trigger was how the children were treated by their peers, not their parents. When kids consider acceptance from their peers as their primary source of fulfillment, rejection and bullying can be utterly Earth-shattering.

“The more peers matter,” says Maté, “the more children are devastated by the insensitive relating of their peers, by failing to fit in, by perceived rejection or ostracization.”

While youth bullying and violence are certainly nothing new, Maté believes the expanding influence of the Internet and social media makes today’s kids far more vulnerable.

“Technology and social media, which are very much geared and marketed toward strengthening the peer culture, give kids an additional power to do each other significant emotional harm,” says Maté.

Outside of the obvious reasons why peers make terrible parenting substitutes, the crucial element missing from peer relationships is unconditional love.

“Absolutely missing in peer relationship is unconditional love and acceptance, the desire to nurture, the ability to extend oneself for the sake of the other, the willingness to sacrifice for the growth and development of the other,” says Maté.

Unconditional love is the most potent force in the parent-child bond, laying the foundation for the relationship’s strength, intimacy, and influence. Without unconditional love, the parenting relationship becomes no different than any other.

Just about anyone is capable of caring for another person as long as they fulfill their expectations. But outside of marriage, the family—chiefly, the parents—is typically the only source for this critically important factor.

Maté notes that some of today’s common disciplinary techniques can unintentionally signal to the child that parental love is only available if certain conditions are met. As an example, Maté explains how putting a child who’s throwing a tantrum into timeout can make it feel like the parent’s attention and love are merely conditional.

“Timeout withdraws your relationship from the child,” says Maté. “They learn they’re only acceptable to you if they please you. The relationship is seen as unstable and unreliable because it’s showing them you’re not available for them when they’re most upset.”

While this example is quite literal, Maté says that any behavior or action by the parent that threatens to undermine the unconditional nature of the parent-child relationship can be harmful. Without the underlying trust that their parents will be there for them no matter what, a children’s primary source of safety and trust becomes a source of insecurity.

When kids are in a state of insecurity, it’s easy for them to become defensive and enter into fight or flight mode. This makes them extremely difficult to communicate with, much less develop the level of intimacy needed for a close parental bond to form.

To prevent children from seeking attachment from outside sources, Maté says parents must make their kids an offer that’s too good to refuse.

“Our challenge as parents is to provide an invitation that’s too desirable to turn down, a loving acceptance that no peer can provide,” says Maté.

Rather than resorting to special parenting techniques, Maté stresses that the best thing parents can do to become closer with their kids is to simply take pleasure in being with them.

“A real relationship with kids doesn’t depend on words; it depends on the capacity to be with them,” says Maté. “Welcome their presence with your body language and energy. Express delight in the child’s very being.” And your most challenging job as a parent is to do this even when they are pushing your every button, as all kids inevitably do.

No matter how your children are behaving, consider a way to show them that they’re  loved and accepted unconditionally. This may go against everything you learned from your parents, but consider doing it anyway. And if you find this particularly difficult, take Mate’s advice and think back about what you would’ve really wanted from your own parents in such a situation.

“The ultimate gift is to make a child feel invited to exist in your presence exactly as he or she is at the moment,” says Maté. “Children must know they’re wanted, special, valued, appreciated, and enjoyed. For children to fully receive this invitation, it needs to be genuine and unconditional.”

When children get this level of acceptance, they naturally desire to become closer with whomever is offering it. Rather than fearing or being threatened by their parents, children want to be with them. They want to follow them.

Once this unconditional relationship is established and/or restored, Maté says that parents will be able to parent intuitively.

“If we know how to be with our children and who to be for them, we need much less advice on what to do,” says Maté. “Practical parenting approaches emerge spontaneously from our own experience. We don’t have to resort to techniques or manuals—we act from understanding and empathy.”

Estate planning is one of your chief responsibilities as a parent, but it’s also one of the greatest expressions of your unconditional love. You can use estate planning to show your children that you love them unconditionally, that you’re here for them no matter what, and you can even begin to involve them in the process right now to varying degrees depending on their age.

Indeed, the planning process itself can be an opportunity to enhance your connection with your kids. Communicating clearly about what you want to happen in the event of your incapacity or death (and talking with your children about what they want) can foster a deeper bond and sense of intimacy than just about anything else you can do.

We can help guide and support you in having these intimate discussions in an age-and-stage appropriate way with your children. Indeed, our clients consistently share that after undergoing our estate planning process, they feel a deeper sense of connection with their children.

While estate planning isn’t likely to completely fix your relationship with your kids, it can be an important first step in regaining that all-important sense of intimacy and trust Maté describes.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Family Wealth Planning Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

As a parent, you are most likely quite accustomed to managing the legal and medical affairs of your children, as circumstances require. If your child requires urgent medical attention while away from you, a simple phone call authorizing care usually can do the trick. But what happens when those “children” turn 18, and are now adults in the eyes of the law, and need of urgent medical attention far from home? Below, you’ll learn what documents should be signed before children go to college.

The simple fact is that the day your child turns 18, he or she becomes an adult, and have the legal rights of an adult. What this means for you is that you lose your prior held rights to make medical and financial decisions for your child, unless your child executes legal documents giving you those rights back. Without the proper legal documents in place, accessing medical information, and even being informed about your adult child’s medical condition can be difficult and in some cases, impossible.

When sending kids off to college, it is important to consider the legal implications an accident or medical emergency might have on your ability to stay informed and participate in important decision making for your young adult child. Medical professionals have a responsibility to follow the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA), which ensures medical privacy protection for all adults. Once your child turns 18, they are (from a legal perspective) no more attached to you than a stranger, making communication about medical issues tricky if your child is incapacitated and not able to grant permission on their own.

In most states, there are three legal documents which can make all the difference when a medical crisis strikes and your young adult child is far from home. When utilized together, they can ensure a parent or trusted adult be kept in the loop about care and treatment when a child over the age of 18 experiences a medical event while they are away at college, traveling, or living far from home. As with most legal documents, the law varies from state to state, so be sure to seek out the counsel of your Personal Family Lawyer® to determine which forms suit your situation best.

Essentially like a permission slip, this authorization allows your adult child to specify who is allowed access to their personal medical information. Specific information can be specifically withheld, such as drug use, sexual activity, and mental health issues can so that additional privacy can be protected if desired.

Designates an agent to make medical decisions for the young adult. This could be you, as the parent or another trusted adult. Each state has different laws governing medical power of attorney, thereby requiring different forms. Be sure to check with me to be sure you are following the laws of your state, as well as the state in which your child resides.

Being asked by a loved one to serve as trustee for their trust upon their death can be quite an honor, but it’s also a major responsibility—and the role is definitely not for everyone. Indeed, serving as a trustee entails a broad array of duties, and you are both ethically and legally required to properly execute those duties or face potential liability.

In the end, your responsibility as a trustee will vary greatly depending on the size of the estate, the type of assets covered by the trust, the type of trust, how many beneficiaries there are, and the document’s terms. In light of this, you should carefully review the specifics of the trust you would be managing before making your decision to serve.

And remember, you don’t have to take the job.

Yet, depending on who nominated you, declining to serve may not be an easy or practical option. On the other hand, you might actually enjoy the opportunity to serve, so long as you understand what’s expected of you.

To that end, this article offers a brief overview of what serving as a trustee typically entails. If you are asked to serve as trustee, feel free to contact us to support you in evaluating whether you can effectively carry out all the duties or if you should politely decline.

Although every trust is different, serving as trustee comes with a few core requirements. These duties primarily involve accounting for, managing, and distributing the trust’s assets to its named beneficiaries as a fiduciary.

As a fiduciary, you have the power to act on behalf of the trust’s creator and beneficiaries, always putting their interests above your own. Indeed, you have a legal obligation to act in a trustworthy and honest manner, while providing the highest standard of care in executing your duties.

This means that you are legally required to properly manage the trust and its assets in the best interest of all the named beneficiaries. And if you fail to abide by your duties as a fiduciary, you can face legal liability. For this reason, you should consult with us for a more in-depth explanation of the duties and responsibilities a specific trust will require of you before agreeing to serve.

Regardless of the type of trust or the assets it holds, some of your key responsibilities as trustee include:

• Identifying and protecting the trust assets
• Determining what the trust’s terms require in terms of management and distribution of the assets
• Hiring and overseeing an accounting firm to file income and estate taxes for the trust
• Communicating regularly with beneficiaries
• Being scrupulously honest, highly organized, and keeping detailed records of all transactions
• Closing the trust when the trust terms specify

It’s important to point out that being a trustee does NOT require you to be an expert in law, finance, taxes, or any other field related to trust administration. In fact, trustees are not only allowed to seek outside support from professionals in these areas, they’re highly encouragedto do so, and the trust estate will pay for you to hire these professionals.

So even though serving as a trustee may seem like a daunting proposition, you won’t have to handle the job alone. And you are also able to be paid to serve as trustee of a trust.

That said, many trustees, particularly close family members, often choose to forgo any payment beyond what’s required to cover the trust expenses, if that’s possible. But how you are compensated will depend on your personal circumstances, your relationship with the trust’s creator and beneficiaries, as well as the nature of the assets in the trust.

Because serving as a trustee involves such serious responsibility, you should meet with us, as your Personal Family Lawyer®, for help deciding whether or not to accept the role. We can offer you a clear, unbiased assessment of what’s required of you based on the trust’s terms, assets, and beneficiaries.

And if you do choose to serve, it’s even more important that you have someone who can assist you with the trust’s administration. We can guide you step-by-step throughout the entire process, ensuring you properly fulfill all of the trust creator’s wishes without exposing the beneficiaries—or yourself—to any unnecessary risks. Contact us today to learn more.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Family Wealth Planning Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.