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I read a recent article describing digital assets. The article described the need to create a plan for bequeathing one’s online presence to loved ones and talked about the need to wrap up old Facebook, Twitter and social media accounts by including these “digital assets” in one’s Last Will and Testament.
It’s not just social media accounts, it can be blogs or financial accounts or other things that you can access on your phone or computer,” said Elizabeth Volney, an estate attorney who recently gave a lecture on the subject. “We have tried to adapt our documents to provide access to these accounts both during incapacity and death.”
Copyright: andreypopov / 123RF Stock Photo
The recommendation that comes from the article is that you should “hand over the password to your loved one, and let them take care of things when you pass away.”
This is such a simplistic view of the minefield of digital assets, that I need to expand on the issues here.
I always struggle with the lumping together of “digital assets” because I think there are three main categories and each comes with their own considerations:
The first are the accounts that just need to be handled for housekeeping; email accounts, your Linkedin profile, Twitter, Instagram, Facebook, Tinder etc. These should all be closed down otherwise there are uncomfortable reminders; I have two LinkedIn connections who have passed away…it’s awkward and disturbing every time I review my contacts. Most social networks however, now have policies for these and they are well illustrated in this infographic. The situation most commonly cited to highlight this issue occurred in 2004 and 2005 when the family of Justin Ellsworth, a deceased U.S. Marine, successfully secured a court order to force Yahoo to give the contents of Justin’s email account to his family. Keeping account ID’s and passwords in a safe place to be discovered by your loved ones is one approach to handling this type of “digital asset”.
Every once in a while there is an unfortunate case of somebody making a mistake when attempting to prepare their own Will. A recent case in Florida has been reported, quite literally, thousands of times through different law blogs as a “cautionary tale” of how things can go badly wrong when you try to prepare your own Will. You can look up the case of “Aldrich v. Basile” and you will see about 100,000 results with headings like
“Case Illustrates Dangers of Executing a Will Without Legal Assistance”
“Do-It-Yourself Wills: Cheap Now, Expensive Later?”
“Why Preprinted or Online Legal Forms Are Not Advisable”
I’ll explain my position on this very sad situation by firstly summarizing exactly where Ms Aldrich went wrong. In an E-Z Will kit form she listed some specific assets to go to her sister and if the sister were to predecease her, the list of assets would go to her brother. Then a few years later her sister died, so she updated that Will with a handwritten note that stated;
This is an addendum to my will dated April 5, 2004. Since my sister Mary jean Eaton has passed away, I reiterate that all my worldly possessions pass to my brother James Michael Aldrich, 2250 S. Palmetto, S. Daytona FL 32119.
There were two issues; firstly her original Will only covered the list of assets, not everything else. However, even though the handwritten update covered “all my worldly possessions” it was only signed in the presence of one witness not two and so was not accepted by the courts.
With respect to the first error, this is unfortunately a limitation of blank form kits, and this is why we steer people away from them – It is easy to forget things. It is important to not confuse a blank form kit with a fully interactive service that guides you through the process and checks for errors. When a person makes a mistake with an E-Z Will kit form it is a warning bell for using this type of form, not for trying to prepare one’s own Will using interactive software. If you use a service like ours this mistake is absolutely impossible to make.
But I personally feel that the second error reflects badly on the Florida Supreme Court. In their ruling the judge stated that
Unfortunately, I surmise that, although this is the correct result under Florida’s probate law, this result does not effectuate Ms. Aldrich’s true intent. While we are unable to legally consider Ms. Aldrich’s unenforceable handwritten note that was found attached to her previously drafted will, this note clearly demonstrates that Ms. Aldrich’s true intent was to pass all of her “worldly possessions” to her brother, James Michael Aldrich
Thankfully an increasing number of jurisdictions have introduced laws that try to respect the intent of the testator and they will not allow true intent to be over-ruled by a technicality. In this case, everybody knows what Ms Aldrich meant, everybody knows what she wanted, but the lawyers and the courts successfully managed to throw this out. The court declared that Ms Aldrich had died without a Will and gave a share of the estate to her nieces according to intestate law.
The judge actually stated that she was deciding the case contrary to the testator’s “true intent”, Ms Aldrich did not want any of her estate to pass to her nieces, they were never mentioned in any of her documents. One legal blogger was very critical of the decision claiming that;
Apparently, the court wished to inflict post-mortem punishment on the testator for engaging in DIY estate planning….The court blamed the “unfortunate result” on the fact that Ann did not seek legal assistance in creating her estate plan.
So now to the reaction and estate planning lawyers are collectively rubbing their hands with glee and providing all kinds of examples of why trying to prepare your own Will is a mistake. Like this one
A lot of times clients come in saying they want something very simple,” says Rubin. “But then you find out their daughter had a baby by artificial reproductive technology. If the definition of ‘child’ in your will isn’t up-to-date, you could disinherit your grandchild.
The claim is nonsense. This clearly does not happen “a lot of times” and perhaps the conclusion should be that if this situation does not apply to you, you can safely go the “do-it-yourself” route.
They then go on to say
These are the conditions each state requires for a will to be considered valid. The standard in Florida is two witnesses.“Every state has its own quirky rules,” cautions Rubin
Actually…it’s not that quirky, every single state requires two witnesses. Across the internet, the scaremongering goes on with countless obscure examples of how attempting to prepare one’s own Will is going to lead to trouble. As an aside, the vast majority of challenges are to Wills prepared by estate planning lawyers but we rarely see “a cautionary tale for what can happen if you use a lawyer to prepare your Will”.
The fallout of this unfortunate case leads me to the following recommendations;
Do not be scared off from preparing your own Will. It isn’t as complicated as some people want you to believe. If you have a complicated family situation then you need legal advice, but most people do not. From time-to-time there will be an article in the media about somebody who made a mistake with a Will kit. This does not mean that preparing your own Will is a bad idea. Over 65% of people do not have an up-to-date Will in place, and many of these are under the mistaken impression that you must use a lawyer to prepare a Will. You should take things into your own hands and make sure that your Will is in place.
Do not use a blank do-it-yourself Will kit, there is a very significant likelihood that you will make a mistake or not cover all situations that need to be covered. Blank forms have way too many spaces that have to be completely correctly. When you see a Will completed through our service you can appreciate how complicated the document can be, with various trust clauses and powers to the Executor. If you do not have a legal education you would not be able to create a well drafted Will using these kits.
Do not use a handwritten note to express your wishes; it opens your estate up to challenges and it may not fulfil the requirements of a Last Will and Testament or Codicil.
Do not use a Codicil to make an update to a Will. Just create a new Will. If you use an online service like ours, you can just login, make the change and print off a new Will. It’s easy.
I just wish that common sense would have prevailed and that the courts would have respected the final wishes of Ann Aldrich. It’s a real shame that they wouldn’t.
The legal boys have won again
And you and I have lost
They can’t tell us how it happened
But they’ll let us know the costElton John – Legal Boys
When our Last Will and Testament service is complimented for its convenience and affordability I feel a sense of pride, but I have to quickly follow up by explaining that our service is not only used by people who “cannot afford expensive legal fees”. It turns out that there is also a growing band of users who turn to our service because they simply don’t want to use a lawyer; they don’t like lawyers, and they don’t trust lawyers to give them a fair deal. The decision to use our service is not about cost; these people could afford to use a lawyer if they wanted to, and they could probably find the time to book an appointment, but it’s a general dislike of the profession. Of course, at LegalWills, we value the expertise of the legal network, and we often direct people to receive professional advice if their situation warrants it, but what is it with this distrust of lawyers? It seems that the legal profession need a PR makeover.
I was reminded of this recently when reading an article on the Canadian CBC website about the disgraced lawyer, Richard Chojnacki, who stole from his clients. The Law Society knew about it for six years, but did nothing. They have been accused of protecting one of their own, even as people were being robbed of their savings. Many lives were ruined unnecessarily as the Law Society sat on their hands, causing “6 years of hurt”. But the story wasn’t the main interest to me, rather it was the comments section. It reflects a public discontent with the legal profession;
“lawyers who are obviously accustomed to dragging things out for billing purposes”
“There is a reason why lawyers have a bad reputation and are hated”
“Who would have thought — a dishonest lawyer?”
“It is said that sharks will not eat lawyers as a professional courtesy”
“99% of all lawyers make the rest of them look bad”
“a lawyer who is dishonest and corrupt. Shocking!!!!”
The list of comments goes on. In fact, when I quickly looked up the list of the ten most distrusted professions, lawyers were sixth on the list, just behind psychics and ahead of car mechanics. There are also countless websites dedicated to “lawyer jokes” reinforcing that perception.
I am sure it was this story that prompted the Toronto Star to start its “Broken Trust” series of investigations into lawyers-turned-criminals, the headline of which is “The Toronto Star found that more than 230 lawyers sanctioned for criminal-like activity by the Law Society of Upper Canada in the last decade, stole, defrauded or diverted some $61 million held in trust funds for clients.”
I’m not sure that lawyers are any more dishonest than any other profession, maybe we hold lawyers to a higher standard because we trust them with our most personal affairs. However, there is certainly a justified perception that some lawyers will try to make as much money as a situation permits, and charge for every possible item. You only have to look at the Nortel bankruptcy in Canada where the legal arguments over how to split $7B in assets have moved the case no closer to a resolution than it was 5 years ago. It’s just the the $7B is much smaller now because $1.2 BILLION has been eaten away in legal fees. Just imagine how that kind of legal bill can be amassed; either a huge number of lawyers, or an unconscionable hourly rate.
I’m not sure when this distrust of the profession started, but in 1852 Charles Dickens published Bleak House, the story of a dispute over a Will which culminates in the estate being swallowed completely in legal fees. The inspiration for the story came from Dickens’ disillusionment of the legal community after working both within the system as a law clerk, and then working with lawyers to protect copyright of his work.
People come to us because they have been quoted as much as $1,200 for a “simple” estate plan. Other clients have come to us because some lawyers refuse to provide a quote claiming that it is impossible to say how much a Will is going to cost until is has been completed. These attitudes put people off, and that is why they are turning to services like LegalWills.ca, LegalWills.co.uk and USLegalWills.com. We can at least tell you that a Will costs $34.95 or £24.95, and we’ve paid the expensive lawyers to create the service so that you don’t have to.
Although our service works for the vast majority of people, some people still need legal advice to create their estate plan. We will always direct people to professionals when our service is not appropriate for their situation. I just wish the legal profession did a better job of presenting themselves to the public.
In previous articles we have discussed the cost of a Will. How is it that we charge $34.95 or £24.95 when the exact same document created by a lawyer will cost anything up to $800 or £500? There are a variety of reasons for this; our costs are kept down because you are effectively writing the Will yourself, and the $800? well, that’s simply overcharging.
The line that is drawn between an online service like ours and going to a lawyer has now been blurred a little by two Canadian lawyers who have set up booths in Walmart. They are using software to create $99 Wills and they are trying to remove the intimidation factor out of Will writing by allowing you to simply walk in without an appointment and have your Will written for you. It’s a interesting approach because that’s exactly the same process by which the $800 Will is created; you provide some personal details and key decisions and the lawyer enters your details into some software and the Will is generated. In fact, this cut price approach is absolutely no different to any other lawyer, and the end result is no different to a Will written by any other lawyer, or a Will written using the service at LegalWills.ca. So why are they only charging $99? The Walmart lawyer explains
We don’t fault other lawyers. If we were doing two a week, we’d have to charge more
so let us understand this….the premium that somebody would pay to use a lawyer has no relationship with the quality of the end product, it’s simply because the lawyer has to charge more to sustain their business.
So what do other lawyers make of this; a well known legal blog said
While a Wal-Mart will may sound like a “good deal”, one-stop estate planning at Wal-Mart may prove to be problematic, should these wills be challenged at some point in the future. Only time will tell.
may prove problematic? what does that mean? These Wills are written by a law firm, why would they be problematic? My guess is that it would be absolutely no more problematic than any other Will that has been written either using a lawyer or a service like the one at LegalWills.ca. It sounds to me like some vague scaremongering.
There are however, a few inherent problems with a “walk-in” Will writing service. Most people do not know all of the answers to all of the questions without a little consideration. For example, naming an alternate Executor, bequests to charities, guardians for children. Some of these things take some real thought and are not answers that you would like to give on the fly.
The final question remains; is $99 a fair price? Well you could pay $99 and save hundreds of dollars, or you could just put your details into the software yourself and save yourself even more. LegalWills.ca allows you to do exactly that for $34.95, from the comfort of your own home. You can take as long as you like to get things precisely the way you want them to, and most importantly you can make updates whenever the need arises, by simply logging into your account, making the change and printing off a new Will. USLegalWills.com offers the same for $34.95 and LegalWills.co.uk is available for UK customers at £24.95.
The options are quite clear. The final document is exactly the same but you can pay a lawyer $600 to enter your information into the Will making software (they have an office to maintain), you can pay Walmart $99 to enter your information into the Will making software (they do thousands, so they can afford to be cheaper), or you can do it yourself for $34.95.
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But then there are the accounts that have sentimental value that really should be passed down to a named beneficiary. I have all of my family photos in an online application called Lifecake and I don’t want these to just disappear. iTunes music libraries and eBook accounts should also be preserved if possible, after all, a generation ago people would leave their book and record collections to their children. You may have a genealogy account at ancestry.com, or used another online service that has been developed over a period of time with a great deal of effort. It is a shame to see these disappear and there may be somebody in the family who would like to take them over. It is even possible that different family members may argue over who should take control of these accounts, so although there is little financial value, there is still an argument for including these items in your Will so that it is clear who will take control of them after you have passed away.
However, the third category is the financially valuable digital assets and these can create really significant challenges. If your estate is to be divided equally between your children, but your estate includes some prestigious domain names registered at GoDaddy, a viral video on YouTube, a blog that generates Adsense revenue, some digital downloads at eJunkie, an affiliate account through Clickbank, a PartyPoker account with a significant balance etc how are these going to be divided? It is conceivable that your single most valuable asset in your entire estate is a domain name that could expire if nobody assumes control of it. There was an interesting article recently about a man who threw out an old computer with $7.5 million worth of Bitcoins on it. The inheritance and taxation laws are going to have to move faster to keep up with these innovations; most estate planning lawyers simply don’t understand what some of these things are.
There are of course digital assets that blur the lines between these categories; like email addresses or online identities that may have little financial worth but certainly have value to the family. It is only a matter of time before we see siblings fighting over the family twitter handle. @smith would be pretty cool to have, so it really needs to be in the Will along with the porcelain tea pot that nobody really cares about anyway.
There is much more to the handling of digital assets than keeping a list of User ID’s and passwords. At LegalWills.ca, LegalWills.co.uk and USLegalWills.com we partnered with MyLifeLocker to make sure that this piece of the puzzle is taken care of. We also have a proprietary keyholder® mechanism to ensure that no online accounts are left undiscovered by your Executor. But you have to give very careful attention to the distribution of these digital assets and make sure that the true value of each asset is properly understood. If certain digital assets have financial value, it may be appropriate to list them in your Will.
What is your most valuable digital asset and do you know who will own it after you have passed away? Do you have any digital assets that may result in a family squabble? I would love to hear about them as I am sure I have missed some potential issues in this blog post.