Estate Administration

Wednesday, May 21, 2014

Digital Life After Death: What Happens To One’s Social Media and Online Storage Accounts After Death?

With an estimated 1.23 billion active monthly Facebook users at the end of 2013, nearly 1 out of every 6 people on planet earth have at least some identity or presence on line.  In the United States, nearly 1 out of 3 people review or update their Facebook account each day!  We share photos, vacation highlights, accomplishments, bad news, political commentary, cat videos, and we give and receive congratulations and support.  In some ways, at least some part of us 'exists' on line.

Have you ever wondered what happens to your online presence when you pass away?   For example, what happens to your Facebook Timeline, your LinkedIn account, and all of the photos you have stored and shared on Shutterfly?  Like your personal effects and bank accounts, you have the power to choose who should have access to your online accounts after your death using carefully drafted estate planning documents, subject, of course, to the terms and conditions of any particular website.  When I draft a Will or a Trust for a client, I include provisions naming a person or persons my client would like to have access to his or her digital assets after death.

Most websites have terms and conditions that you have agreed to in order to participate in the forum, and you should read them.  Many websites will honor your wishes if you have included wording in your Will or Trust regarding digital account but, as mentioned previously, some websites will have their own procedures that will trump the instructions you leave in your estate planning documents.  It is important to acquaint yourself with the terms and conditions of all websites you are utilizing and take appropriate measures to ensure that the digital assets stored on that website would not be lost in the event of your unexpected demise.  Consider leaving a list of websites and corresponding user names and passwords for your personal representative with your Will.

Just as one example, Facebook has a clear policy for how it handles the accounts of deceased users.  Facebook will memorialize the user’s Timeline upon notification of the death of the user.  The request to memorialize the account can be made by anyone who knew the deceased user.  You can submit a Facebook Memorialization Request by clicking here.  Once the death is confirmed by Facebook, the account will become memorialized, meaning that the deceased user cannot obtain new friends, users will not be able to post to the deceased user’s Timeline, and other personal information will be removed.

This is an ever-evolving area of the law, as are most internet-related issues.  As users of the fast-paced technology, it is our responsibility to review the policies of the sites we use and make appropriate provisions to protect ourselves both during life and even after death.  Be sure to review the terms and conditions as well as the personal settings of every social media website and digital storage website you utilize.  A well written estate plan along with a list of sites and login information will go a long way in the event your personal representative ever has to start picking up the pieces of your digital estate.  If you have an estate plan, review it to see whether there are provisions regarding your digital estate or websites that you use regularly.  If there are no provisions or if it has been more than a three years since your estate plan was drafted, make an appointment with an estate planning attorney to discuss your options and to update your plan.

Emily Towne McNeil is an estate planning and probate attorney at the Boston law firm of Vaughn-Martel Law.

Wednesday, August 29, 2012

Until Debt Do Us Part: Who Inherits Credit Card Debt?

It is safe to say that America is experiencing a debt crisis.  Most of us have at least one credit card balance that just doesn't seem to be going down!  So what happens to our credit card balances when we die?

The good news is that, with some exceptions, surviving spouses and family members are not responsible for the leftover debt of their loved one.  The bad news is that our estate is responsible for our leftover debt.  That means that before anyone can inherit a single penny from the estate of a deceased person, all of his or her valid debts must first be paid.  Credit card companies are more than happy to collect money from the surviving family of a deceased credit card holder, and it is important to know as a general rule that you are not responsible for the debt of another - even your spouse.

As a recent article on points out, there are exceptions that could leave you on the hook for someone else's credit card balance after that person's death.

Joint Cardholders v. Authorized Users

If you're a joint cardholder, meaning you co-signed for the credit card, you're liable for the debt. Parents sometimes do this for children who are just starting out, or adult children will co-sign with their elderly parents, perhaps to help keep track of expenses.

If you're only an authorized user, you're not liable when the cardholder dies. If you co-signed as a joint cardholder, then you just got a new credit card debt.

"Sometimes, people can be on a credit card and not even know it," says Pennsylvania attorney Linda A. Kerns. "Maybe when they filled out the credit card applications, (the joint cardholder) didn't even tell them." These accounts could show up years later, at the time of a death or divorce.

"I tell people to check their credit card reports regularly. Resolve it before a death or divorce or traumatic event," says Kerns.

Checking your credit report annually is easy and free, and is the best way to quickly challenge inaccurate information and take address accounts that are either joint or have been misreported as joint.

Custody of Credit Card Debts in Divorce

It happens too often:  One spouse agrees to pay off a joint card as part of a divorce settlement.  But if the ex doesn't do it or dies before the debt is paid and your name is still on the card, the credit card company may come looking for you.

Furthermore, according to Texas attorney Glen Ayers, if you live in a community property state, you'd better hope you didn't receive community property in the divorce. "That divorce judgment does not bind the credit card company. It's going to chase you," he says.

The credit card companies don't care what your agreement with your ex is - they just know that you are legally responsible to them for the debt.  It is extremely important to address all credit card accounts in your separation or divorce agreement, and to place clear deadlines by which all joint credit card accounts must be paid off and closed.  Better still, the responsible spouse should be made to produce evidence of that to the other spouse, or face charges of contempt.

Using a Credit Card After the Death of the Cardholder

Continuing to use a credit card as an authorized user after the cardholder's death could put you in big trouble.  "That's got criminal implications," says Ayers. "If somebody wanted to make a case of that, is that any different than picking up a card on the street?"

The same goes for using the card as an authorized user when you know the debt won't be paid.  For example, says Kern, "You'd be committing fraud if you knew a parent was near death and the estate didn't have money and you used it knowing it wouldn't be paid off."

Given the Various Exceptions, Time Limits, and Complicated Rules on What Constitutes Estate Property, Talk to an Attorney Before Paying

Even if you are not held personally liable for the credit card debt of a deceased loved one, you'll feel the effects of it if you're a beneficiary of the estate.  Debts will be paid from the estate before beneficiaries receive any distributions.  But the estate is only legally obligated to pay debts out of "estate property".  Property that is titled "jointly", including real estate, or where beneficiaries are named, including life insurance, may pass outside of the estate, and should not be made available to pay credit card debt.

In addition, there is a specific time period for creditors to file a claim against the estate.  When an estate is probated, creditors are prioritized, but only if they file appropriate notices within the statutory period.  If they don't, they could be out of luck.

Credit card debt is unsecured, unlike a mortgage, which is secured by property, or a car that is secured by the vehicle.  So it's likely the credit card company will be at the back of the line when it comes to paying debts from the estate.

That doesn't mean the credit card company won't try to recoup the debt from family members, so don't fall for it if you know you're not liable.  Taking some pre-emptive action, such as notifying credit card companies that the cardholder has died, will help prevent them from contacting you.

Before any debts are paid out of an estate, including credit card debt, consult your attorney.  Even if credit card balances are owed, it is often possible to negotiate settlement of the balances for less than the full amount owed.  Vaughn-Martel Law represents and assists clients who have been named as the executor, administrator, or representative in managing the estate of a loved one.

Saturday, October 1, 2011

Massachusetts's Adoption of the Uniform Probate Code to Take Effect in 2012

For those who have lost a loved one or family member, the Massachusetts probate process can seem like a foreign and complicated process.  Adoption of the Massachusetts Uniform Probate Code takes effect January 2, 2012, and is designed to simplify the probate process.  The new process will, in many cases, require less court supervision, be faster and cost less than the current probate process.

In the past, probate forms and terminology had been divided into two groups depending on whether the decedent had died testate (with a Will) or intestate (without a Will).  The MUPC has merged the two distinctions and included both on most of the forms, thus eliminating confusion over which forms to use. Terminology has also been streamlined.  There will no longer be a distinction between an Executor and an Administrator.  The term used to describe the person assigned by the court to settle the estate’s affairs will be the all inclusivePersonal Representative.

There will be more options as to the level of involvement on the part of the probate court.  The implementation of unsupervised probate will give the personal representative powers to handle most of the duties of the administration of the estate without order of the court.  Supervised administration will also be in option under the MUPC and may be preferable when the estate will benefit from the additional oversight of the court.

One of the most anticipated changes is the introduction of informal probate proceedings.  Informal probate is designed for the probate of relatively simple, uncontested estates.  The process will be faster and require- less reporting to the court than traditional probate.  Notice to interested persons is mailed seven daysprior to the filing of the Petition.  All necessary forms are presented to the court as a packet.  If everything is in order, the court will issue Letters Testamentary/Administration.  It will be up to the personal representative to give notice by publication after the Letters have been issued.  The court will not follow up on the publication requirement with an informal probate.  Inventories and accounts will be provided by the personal representative to the interested parties but will not be required to be filed with the court.  Less court involvement and fewer required court filings means fewer court and attorney fees for the simple estate!

Any estate administration that does not qualify for informal probate will be filed formally.  Formal probate proceedings will continue to have many of the same requirements as the existing probate process.  Notice and publication will have to be made and proof of service and proper publication will be required before the court issues Letters in formal probate proceedings.  Increased court involvement and oversight will, unfortunately, lead to increased costs for the estate. However, formal probate may not always be unwanted.  One may desire to file formally if they have received notice of the intent of another interested person to file informally.  During the seven days of pre-notice for informal proceedings, an interested party may initiate formal proceedings thus making the informal process unavailable from the beginning.  Even after informal proceedings have started, interested parties will always have the option to petition the court to convert to formal probate proceedings.  This may be helpful if it becomes evident that additional supervision by the court would be beneficial to the estate.

The MUPC will introduce additional changes such as the new role of magistrates, new statutory powers of personal representatives and enhanced requirements for and participation of Guardians Ad Litem for incapacitated and/or protected interested persons.  Over the next few months, and certainly once the MPUC is put into effect, these changes will become more evident.  Hopefully for those estates that do have to endure the probate process, the objective of the various professionals within the legal profession and process who have worked so hard to make these changes a reality will be realized and the probate process will be shorter from beginning to end and less cost prohibitive for all involved.

Charles River Law Partners, LLC represents clients in Suffolk County, Middlesex County, Essex County, Norfolk County, Plymouth County, Bristol County, Worcester County, Hampden County, and Franklin County.
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