So What Happens To My Facebook Page and On-Line Accounts When I die?
When we think about what will happen to our “things” when we die, we often do not consider our Facebook, twitter, google, or snapchat accounts. Technology is often the last thing on our minds.
It may be time to consider putting together a tech checklist so that your loved ones can have access to digital files like photos, videos, and other memories. Given the continuous growth in technology, it is more important than ever before to make a plan for your digital assets. This has often been referred to as a “digital legacy.”
Below is a checklist to help you put together your digital legacy plan:
1. Take inventory of your digital assets
2. Add a digital executor to your will [Note: It is problematic whether a court will allow bifurcation of an executor’s duties.]
3. Add digital heirs to your accounts
4. Plan to pass on your passwords
5. Record your stories
This will be a great start for putting together a solid plan for your digital assets.
Still have more questions and want to develop a plan for your digital and non-digital assets? Call us for a free consultation.
Joining the states of Florida, Ohio, and Tennessee, the New Jersey Supreme Court has found that non-lawyers who apply the law to a Medicaid applicant’s specific circumstances are engaging in the unauthorized practice of law.
The state Supreme Court had received complaints that non-lawyers retained by families or nursing homes to assist with the Medicaid application process were providing erroneous or incomplete law-related advice, and a state attorney ethics hotline had received reports that non-lawyers have charged “clients” large sums of money for faulty Medicaid-planning legal assistance, causing the elderly victims significant financial loss.
Asked by the state Supreme Court for an opinion specifying what activities non-lawyers may engage in and what activities are the unauthorized practice of law, the Committee on the Unauthorized Practice of Law has concluded that while non-lawyer Medicaid advisors may provide limited services, “[a]pplying the law to an individual’s specific circumstances generally is the ‘practice of law.’
A Medicaid advisor or Application Assistor may provide information on insurance programs and coverage options; help individuals complete the application or renewal; help them with gathering and providing required documentation; assist in counting income and assets; submit the application to the agency; and assist with communication between the agency and the individual. But the advisor may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like.”
For the Committee on the Unauthorized Practice of Law’s Opinion 53, “Non-Lawyer Medicaid Advisors (Including ‘Application Assistors’) and the Unauthorized Practice of Law,” courtesy of New Jersey elder law attorney Donald D. Vanarelli, go to: Vanarellilaw.com
Rhode Island has not addressed this issue of Medicaid Planning and assisting with Medicaid applications as being activities that constitute legal advice and thus only to be dispensed by licensed attorneys. People are on notice that use of non-attorney’s for this planning is a risk that each person should weigh before embarking on planning with non-attorneys.
Ever since watching Gilligan’s Island as a kid I have secretly wondered how and what Thurston Howell, III and Lovey Howell meant when they mentioned their “Trust Accounts.” I thought it was something only related to rich people. Now I know it is not about being rich as much as it is about being smart.
What is a trust and why should I have one in my estate plan?
Trusts have been used for estate planning and asset protection for centuries. Their usefulness and flexibility for these purposes have been proven by the test of time. The origin of trusts can be found in the eleventh century crusades. Crusading English knights left their manors and estates in the care of trusted friends for safekeeping while themselves away on crusade. However, trusts are not just some dusty, antiquated notion from manorial England!
A trust is a separate legal entity for holding and investing property. One or more persons (the “trustee”) holds property, usually real estate or investments, for the benefit of another or several other people (the “beneficiary”). The person who gives the property for the trust is known as the “donor” or “grantor” or “settlor.” The trustee holds legal title or interest and is responsible for managing, investing, and distributing the assets or property of the trust. The beneficiary holds an equitable or beneficial interest.
What are the benefits of establishing a trust?
Depending on your situation, there can be several advantages to establishing a trust. The most well known benefit is avoiding probate. That is, in a trust that terminates with the death of the donor, any property in the trust prior to the donor’s death passes immediately to the beneficiaries by the terms of the trust without requiring probate. This can save time and money for the beneficiaries. Certain trusts can also result in tax advantages both for the donor and the beneficiary. Or they may be used to protect property from creditors, to help the grantor qualify for Medicaid, or simply to provide for someone else to manage and invest property for the grantor and the named beneficiaries. Trusts are private documents and only those with a direct interest in the trust need know of trust assets and distribution. If well drafted, another advantage of trusts is their continuing effectiveness even if the donor dies or becomes incapacitated.
What kinds of trust are there?
There are several types of trusts, some of the more common of which are discussed below:
A revocable trust is sometimes referred to as a “living” or “inter vivos” trust. Such a trust is created during the life of the donor rather than through a will. With a revocable trust, the donor maintains complete control over the trust and may amend, revoke, or terminate the trust at any time. So, the donor is able to reap the benefits of the trust arrangement while maintaining the ability to change the trust at any time prior to death. The disadvantage of a revocable trust is that the trust assets are countable to the donor for purposes of determining Medicaid eligibility and does not provide protection against creditors or in the event of a divorce.
An irrevocable trust is created during the life of the donor, who thereafter may not change or amend the trust. Any property placed into the trust may only be distributed by the trustee as provided for in the trust instrument itself. For instance, the donor can provide that he or she will receive income earned on the trust property. An irrevocable trust that provides for the donor to retain the right to income only is a popular tool for Medicaid planning.
A testamentary trust is a trust created by a will. Such a trust has no power or effect until the will of the donor is probated upon his or her death. Although a testamentary trust will not avoid the need for probate and will become a public document as it is a part of the will, it can be useful in accomplishing other estate planning goals. For instance, the testamentary trust can be used to provide funds for the surviving spouse in a form that should neither be considered available nor have to be spent down if he or she should seek Medicaid eligibility to pay for long-term care. Though a testamentary trust is an available tool for estate planners, it is rarely used as there are better more effective trusts that can achieve the same goals as a testamentary trust without the possibility of probate court involvement.
A supplemental needs trust can be created by the donor during life or as part of a will. Its purpose is to enable the donor to provide for the continuing care of a disabled spouse, child, relative or friend. The beneficiary of a well-drafted supplemental needs trust will have access to the trust assets for purposes other than those provided by public benefits programs. Thereby, the beneficiary will not lose eligibility for benefits such as Supplemental Security Income, Medicaid, and low-income housing.
How can I find out if I should have a trust?
As with all estate planning, anyone considering a trust should contact our office at (401) 274-0300 to schedule a free consultation to discuss how trusts can best work for you.
56 Exchange Terrace
Providence, RI 02903
36 South County Commons Way
Building 4, Suite C-3
South Kingstown, RI 02879
About Mathew J. Leonard ESQ.
Matthew J. Leonard's practice is concentrated in business law, estate and asset protection planning, elder care, civil and probate litigation and real estate. He is a member of the Rhode Island, Massachusetts and Florida bars. He is a frequent lecturer and has authored and spoken on in many occasions through the state.