Upstate Estate Law, P.C. Blog

While a number of states (South Carolina included) have introduced legislation to adopt the Uniform Fiduciary Access to Digital Assets Act, only three have actually adopted it thus far. The first was Delaware, which adopted it on August 12, 2015, effective January 1, 2015. Second was Oregon, adopted on March 2, 2016, effective January 1, 2017. Now Wyoming makes the third, which adopted the uniform law on March 7, 2016.

The Uniform Fiduciary Access to Digital Assets Act allows personal representatives, executors, guardians/conservators, and persons acting under a power of attorney to have access to digital accounts of a decedent or incapacitated person. The law is intended to make it easier to gather the digital assets and get access to them to administer a decedent’s or incapacitated person’s estate. Nowadays, an important part of estate planning will be focused on generating a list of digital assets and providing the ability for our designated agents to obtain access to the digital assets when necessary. Other bills are pending around the country, so it is expected that this uniform law will be adopted somewhat rapidly.

South Carolina has a bill currently pending in the state legislature. You can find it here. It will be interesting to see if this bill can move forward, particularly when lots of attention seems to be on the highway bill and gas tax proposal. I am unsure however how effective this bill will be. The various terms of services agreements users accept when using online services can potentially take the effectiveness out of this law. This will be a fascinating area of estate planning and probate to watch in the coming years.

Check out this prior post for some examples of why this bill can be so important.

The stories are starting to become more frequent and familiar. They generally involve grieving families trying to access their deceased loved one’s online accounts, social media, or even devices such as iPhones and iPads. Those of us who are online are likely to amass a great deal of data, such as messages, emails, voice mails, photos, passwords, music, and videos on our devices and in the cloud, which can become painfully out of the reach of our loved ones after our lifetimes. It can be difficult to even obtain a password to access an iPhone or iPad of a deceased loved one without a court order. Add on top of this the frustration of each online service provider instituting it’s own policy for providing access to our loved ones’ accounts, you can easily see that this is a situation we would want to avoid.

See the links below for recent examples:

Widow Needed A Court Order to Access iPad

A Legal Showdown With Apple To Access iPhone Photos

Is there anything you can do to plan for allowing your family access to your online life, if that is your wish? Of course there is. I will talk about that in Part 2 of this post.

I get this question pretty frequently. The terms above refer to two very general categories of trusts.

An inter vivos trust is a trust that was created during the lifetime of its creator (the Grantor or Trustor).

A testamentary trust is set up upon the death of its creator, usually in the creator’s Last Will and Testament.

Some distinctions are that an inter vivos trust may be freely revocable and modifiable by its creator during his/her lifetime, whereas the testamentary trust is typically irrevocable, except under certain circumstances. The inter vivos trust may be set up to accomplish asset management, incapacity planning, or Medicaid planning for its creator. A testamentary trust is useful to protect the creator’s eventual beneficiaries from dissipating their inheritance through immaturity, creditors’ claims, divorce, and the like.

These two trust types probably represent the most general distinction that can be made among trusts. Make no mistake though, there are a lot of different types of trusts that can be created. In future posts, I will write more about these different types of trusts.

Since my young son was diagnosed with high functioning autism while in kindergarten a few years ago, I have become more aware of the rights and requirements of the federal Individuals with Disabilities Education Act (IDEA), and have had my share of IEP meetings and updates with his schools. For others dealing with these issues, an interesting problem could arise when a child who is eligible to receive special educational services under IDEA turned 18 years old.

Prior to the child reaching the age of 18, the rights under IDEA would be accorded to the child’s parents. But when the child turns 18, the rights transfer to the child. This obviously brings up the issue of what happens if the child is not capable of exercising those rights? A newly proposed statute would allow several resolutions to this issue.

First, if the child has not previously been determined to be incapacitated, the child may delegate these rights to another adult. This could be done via a power of attorney or other document to be created by the South Carolina Department of Education.

Second, if the above cannot be accomplished, it would be possible for certain qualified licensed professionals to make a certification in writing that the student is incapable of providing informed consent to make educational decisions. This certification would allow the custodial parents of the child to make decisions as an educational representative, or if they are not available, certain other designated close family members. The child would have the chance to object to this certification, and a determination of incapacity pursuant to a guardianship proceeding would seem to take precedence over this certification.

This proposed act appears to make it somewhat easier for family members to maintain control over an adult student’s rights to an education under IDEA. Without these amendments it would seem that the only alternative would be to bring a guardianship proceeding in order to gain control over the right to make educational decisions. However, the guardianship proceeding might very well not be appropriate in every situation, and can be a costly endeavor.

This new proposed law seems to try to fill in this gap where somebody may have rights under the law but be unable to adequately and thoughtfully exercise those rights. If there is any news on this new law I will provide an update, so keep coming back.

One night while out on the town with some friends, a friend of a friend asked me what estate planning was. I thought about the question for a moment, quickly raced through what my answer should be, and realized that there are many different ways to answer that question. Since the goals to be accomplished by estate planning can be varied, how you might define estate planning can differ.

My answer was three fold. First, estate planning arranges for the orderly transfer of assets to your heirs after your lifetime. Second, estate planning allows you to protect your heirs from the potentially detrimental effects that an inheritance can have. Third, estate planning can be utilized to protect assets from creditors and illness.

The estate planning task can also vary based on the stage of life you find yourself at. If you are at a younger stage of your life, estate planning can address issues such as guardianship for your young children, and management of your children’s finances if something were to happen to the natural parents. If you are at a later stage of life, estate planning can address transmission of retirement assets and protection of assets from medical expenses and, if the estate is large enough, from estate taxes. While we also might focus on the transmission of assets to the next generation, we also have to be concerned with the management of assets in the current generation in the case of disability or mental incapacity.

The typical estate plan is made up of several basic documents. They are the Last Will and Testament, the Durable Power of Attorney for Property, the Durable Power of Attorney for Health Care, a Living Will, and possibly a testamentary or inter vivos trust. We also must not forget that beneficiary designation forms play a large role in the estate plan, and oftentimes these important documents receive scant attention. The documents to be used in a particular estate plan depends on the individual situation.

I am often asked how much estate planning costs. My standard reply is that is a lot like walking into a car repair shop and asking how much to fix a car. The answer is it depends on what you need. You can expect a truly bare bones simple estate plan to run several hundred dollars, whereas an estate plan using one or more trusts can be several thousand dollars. Bottom line is it depends. It can seem like a significant investment, but some attorneys will give you a free consultation to discuss your situation.

I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs does not make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation