Estate Planning

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

Manhattan Businessman Disinherits his Gay Son's Children; Legal Challenge Filed

As reported over the weekend by the New York Post, the son of a wll-known Manhattan businessman has challenged a provision in his father's will that disinherits his grandchildren unless they are born to a heterosexual married couple.  According to the New York Post:

The edict surfaced in the will of Manhattan businessman Frank Mandelbaum, who specified that none of his money should go to any offspring his son Robert might have if he is “not be married to the child’s mother within six months of the child’s birth.”

Frank Mandelbaum, who died in 2007 at the age of 73, is the founder of the ID verification company, Intelli-Check.  The late Frank Mandelbaum's will prompted his son, Robert Mandelbaum, a Manhattan Criminal Court Judge, to challenge the estate and to argue

that his longtime partner Jonathan O’Donnell is the only 'mother' their 16-month-old son, Cooper, knows. The couple married shortly after Cooper’s birth via a surrogate, entitling the child to a share in a $180,000 trust set aside for Frank Mandelbaum’s three grandkids, Robert declared.

According to the New York Post, Frank Mandelbaum's wife, Ann Freeman, stated in court papers that her "husband's will specifically prohibited such a child from becoming a beneficiary."  Such a child!

According to Robert Mandelbaum, his Father was well aware that he was gay, and noted that his long-time partner, O'Donnell, was included in family dinners and vacations.  Now, Robert and his husband O'Donnell are fighting in court to prove that Frank's will is discriminatory and in violation of state law and public policy.

"Requiring a gay man to marry a woman ... to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy,” the couple's attorney, Anne Bederka, wrote in court papers. “There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."

In Massachusetts, and many other states, the maker of a will may dispose of her property in any lawful manner, so long as such disposition is not repugnant to law.  An individual may lawfully place conditions on bequests in his will, such as graduating from college or refraining from alcohol, and those conditions should be carried out by the courts so long as they do not contravene some positive rule of law, or are against public policy.  Damon v. Damon, 312 Mass. 268 (1942).

However, conditions that amount to a complete prohibition on marriage will generally not be enforced by the courts, and partial restrictions on one's ability to marry will be upheld only if reasonable.  What qualifies as a total or partial prohibition, and what is a "reasonable restriction", is very much open to debate.  In Gordon v. Gordon, 332 Mass. 197 (1955), the Supreme Judicial Court of Massachusetts held that a testamentary provision which disinherited any beneficiary who did not marry a person born of the Jewish faith constituted an enforceable and reasonable partial prohibition on marriage.  After all, the beneficiary could marry any suitable Jewish person he liked!

Is a testamentary bequest that disinherits a gay child unless he or she marries someone of the opposite sex a reasonable partial restriction on marriage, or does it amount to a complete prohibition on marriage for that gay individual?

In the end, controversial restrictions such as Frank Mandelbaum's are very likely to cost the estate and all beneficiaries a significant amount of money, emotional pain, and legal fees.  When you are preparing your estate plan, be careful that you are restricting gifts for the right reasons and that you are not inviting costly challenges to your estate when you are gone.

 

As reported over the weekend by the New York Post, the son of a well-known Manhattan businessman has challenged a provision in his father's will that disinherits his grandchildren unless they are born to a heterosexual married couple.  According to the New York Post:

The edict surfaced in the will of Manhattan businessman Frank Mandelbaum, who specified that none of his money should go to any offspring his son Robert might have if he is “not be married to the child’s mother within six months of the child’s birth.”

Frank Mandelbaum, who died in 2007 at the age of 73, is the founder of the ID verification company, Intelli-Check.  The late Frank Mandelbaum's will prompted his son, Robert Mandelbaum, a Manhattan Criminal Court Judge, to challenge the estate and to argue

that his longtime partner Jonathan O’Donnell is the only 'mother' their 16-month-old son, Cooper, knows. The couple married shortly after Cooper’s birth via a surrogate, entitling the child to a share in a $180,000 trust set aside for Frank Mandelbaum’s three grandkids, Robert declared.

According to the New York Post, Frank Mandelbaum's wife, Ann Freeman, stated in court papers that her "husband's will specifically prohibited such a child from becoming a beneficiary."  Such a child!

According to Robert Mandelbaum, his Father was well aware that he was gay, and noted that his long-time partner, O'Donnell, was included in family dinners and vacations.  Now, Robert and his husband O'Donnell are fighting in court to prove that Frank's will is discriminatory and in violation of state law and public policy.

"Requiring a gay man to marry a woman ... to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy,” the couple's attorney, Anne Bederka, wrote in court papers. “There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."

In Massachusetts, and many other states, the maker of a will may dispose of her property in any lawful manner, so long as such disposition is not repugnant to law.  An individual may lawfully place conditions on bequests in his will, such as graduating from college or refraining from alcohol, and those conditions should be carried out by the courts so long as they do not contravene some positive rule of law, or are against public policy.  Damon v. Damon, 312 Mass. 268 (1942).

However, conditions that amount to a complete prohibition on marriage will generally not be enforced by the courts, and partial restrictions on one's ability to marry will be upheld only if reasonable.  What qualifies as a total or partial prohibition, and what is a "reasonable restriction", is very much open to debate.  In Gordon v. Gordon, 332 Mass. 197 (1955), the Supreme Judicial Court of Massachusetts held that a testamentary provision which disinherited any beneficiary who did not marry a person born of the Jewish faith constituted an enforceable and reasonable partial prohibition on marriage.  After all, the beneficiary could marry any suitable Jewish person he liked!

Is a testamentary bequest that disinherits a gay child unless he or she marries someone of the opposite sex a reasonable partial restriction on marriage, or does it amount to a complete prohibition on marriage for that gay individual?

In the end, controversial restrictions such as Frank Mandelbaum's are very likely to cost the estate and all beneficiaries a significant amount of money, emotional pain, and legal fees.  When you are preparing your estate plan, be careful that you are restricting gifts for the right reasons and that you are not inviting costly challenges to your estate when you are gone.

 

Monday, April 16, 2012

The Family Trust: Protecting Your Children's Inheritence

A simple family trust is a great tool for making sure the assets your children could possibly inherit are distributed to your children according to your wishes. By using a trust, you decide who will hold and manage the assets your children inherit.  You can put restraints on when and how distributions are made.


Read more . . .


Tuesday, September 27, 2011

Vaughn-Martel Law Expands Estate Planning Practice; Welcomes Attorney Emily Towne McNeil

Attorney Emily Towne McNeil joins Vaughn-Martel Law as an associate specializing in estate and wealth planning.

Emily received her Juris Doctor degree from New England Law in Boston, Massachusetts.

Following her graduation from New England Law, Emily worked for the private wealth advisory services firm G.W. & Wade, LLC, in Wellesley, Massachusetts.  As a staff attorney for the firm, Emily provided clients with estate and wealth planning advice, with a focus on wealth management through advanced probate planning and complex estate tax planning for individuals and families.

Immediately prior to joining Vaughn-Martel Law, Emily operated her own estate planning and tax consulting business, and she brings with her a strong base of knowledge and experience in estate planning and tax.




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