Friday, May 3, 2013

Google Rolls-Out Social Media & Digital Estate Plan

Truly, Google is everywhere.  Now, the Big Data company is looking to get into your [digital] estate plan; and with some good reason.

Right around tax-time last month, Google rolled out its "digital afterlife" feature -technically and officially known as the inactive account manager.  This tool allows Google users to provide Google with specific instructions about what to do with their Google data when they die.

Google has billed this feature as something to make it easier for a user or a user's personal representative to manage a person's personal data -one's "digital estate"- after death.  The inactive account manager was initially touted in the Google Public Policy Blog.

Nearly everyone has a Google account.  Many of us have developed complex electronic profiles over the past decade; some of those profiles even have value.

The law has not caught-up with our electronic profiles.  To date, only five states -Connecticut, Idaho, Rhode Island, Indiana, and Oklahoma have estate laws addressing digital assets.  Not to worry, however, as the Uniform Law Commission has set about drafting a proposed uniform digital estate law that will make it much easier for other states, including Michigan, to adopt the appropriate legislation.

As time marches on, Google's inactive account manager is banking on the specter that a majority of their user's will want to preserve, protect or direct their data profiles.  The inactive account manager is designed to aid in this task.

It is a very 21st Century concept.  We here at the electronic  probate attorney wonder what this account manager will look like in, say, 100-years from now.

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Wednesday, May 1, 2013

Heirs-at-Law Discovered via Facebook

Recently at our law firm, we have had a few cases where personal representatives and other fiduciaries have located heirs-at-law through Facebook.  In some of these cases, nothing was known about the heirs and resources were about to be expended with an expert skip-tracer.

Alert family members were tipped off and/or obtained information through their FB friends or "friends-of-friends".  In turn, this provided the probate lawyers of our firm with some basic contact information.

Under the applicable court rules, lawyers are still limited to "old school" methods of transmitting messages and documents; not even email is permissible under the court rules.  Informally,  however, modern practitioners are utilizing a variety of social media and data directories to locate heirs.

Once the interested parties are identified, the process of identifying the various claims and other issues of probate estate administration can commence.

Slowly, probate courts across the country are implementing an electronic infrastructure and promulgating electronic filing standards.  Both Wayne and Oakland County Probate Courts have made great strides in this area.

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Monday, December 10, 2012

The Veterans Administration and the Aid & Attendance Benefit


The VA provides a little known benefit called the Aid & Attendance benefit available to qualified veterans.  The service requirements to qualify for this benefit include serving at least 90-days of active duty with one day during a war-time period.  A dishonorable discharge disqualifies the veteran from receiving the benefit.

If qualified, the maximum annual pension is up to $1,644 per month; a veteran and his or her spouse may receive up to $1,949 per month; a surviving spouse of a veteran could receive up to $1,056 per month.

The veteran does not need to be suffering with limited assets in order to qualify.  Depending on the circumstances, a veteran and their spouse could have assets of $80,000 and a single veteran or surviving spouse could have assets valued at $40,000.

The VA does not count the veteran's home within the asset calculation; nor does the veteran have to sell their home to qualify for the benefit.

The asset threshhold be met with proper financial and estate planning.  You may find the assistance of a VA accredited attorney, or other qualified professional to ascertain your eligibility.

Unlike Medicaid, the current law does not apply a “look back” test for asset transfers, nor is there a “penalty period” for gifts or transfers to qualify for the Aid & Attendance benefits.

You will not be required to invest a large portion of your asset portfolio to qualify for the Aid and Attendance benefit.  While that strategy is employed by some organizations, you do not need to utilize annuities in order to qualify for VA benefits.

A veteran can expect about a 9 to 11-month wait for benefits to commence once the application has been submitted to the VA.  However, the VA pays benefits retroactively back to the month after the application is filed, provided the applicant is still living.

For assistance, contact the VA for accredited lawyers near you.

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Sunday, December 9, 2012

Widows Experience High Foreclosure Rate

One of the lingering twists to the real estate recession of the past five-years is that widows over the age of 50 are experiencing drastically increased foreclosures according to the AARP.  This glitch in the foreclosure crisis arises due to the prevalence of mortgage notes obligating husbands-only; when they die, their widows often do not qualify to refinance the mortgage note.  

According to the AARP study, the mortgage foreclosure rate for persons over 50 rose by 23% between 2007 and 2011.  The causes are believed to be the surviving spouse's fixed income, the increased cost of needed medication, and the small print on the couple's mortgage note.

Our rapidly aging population is also to blame.  This demographic has produced a disturbing Catch-22: to stay in the home, the widow must take over the mortgage payments; but in order to do that, the payments must be up-to-date.  In many cases where the wage-earning husband dies, especially following a long illness, the unsuspecting widow finds that the mortgage is already significantly behind.

Add to his dynamic the fact that, in general, elderly Americans are saving less and spending more.  Our elders between the ages of 65 to 74 are becoming indebted at the fastest rate of any other age-group.

In the case of a widow in poor health, the application process alone can be hazardous to one's health.  As veterans of the process can attest, the process features unanswered phone calls, and repeated requests by loan servicers for the same documentation.

The lesson implied in this ominous trend is to get your house in order, literally, prior to the death of one of the spouses.  This means that a married couple should make every attempt to place both spouses on the mortgage note so that refinancing the marital home is not necessary following the death of one spouse.

Another "best practice" is to have each spouse participate in paying the bills and managing the mortgage when one of the partners attains age 50.  Traditionally, one spouse takes primary responsibility over the bill-paying tasks.  Familiarity with the process will reduce stress levels when, for example, a widow finds herself as the only one left to keep the mortgage on track.

Finally, having an executed estate plan will reduce stress when a spouse dies.  Consult with an estate planning attorney in your  community to learn more about your options.  Good luck out there; if you don't look out for yourself, no one else will.

www.clarkstonlegal.com
info@clarkstonlegal.com

Friday, November 30, 2012

Frozen Sperm and the Social Security Administration

The Michigan Supreme Court heard oral arguments mid-Month in a very interesting case of first impression involving frozen sperm and Michigan's laws of intestacy.  The certified question before our High Court  is whether frozen sperm equates to "children" under the intestacy statute.

In this case, the procedure is as unusual as the fact pattern.  The case comes to the Supreme Court on a certified question from the United States District Court for the Western District of Michigan.  The case took more than five-years to get to the state court.

The case arose when the Mattisons, a married couple, arranged for Mr. Mattison to bank his frozen sperm in order to preserve it for later impregnation and prior to receiving chemotherapy to treat his cancer.  The couple desired to preserve their ability to have children but were worried that Mr. Mattison's chemotherapy would damage his sperm, complicating their efforts to conceive a child.

After actively preparing his wife to receive his frozen sperm, Mr. Mattison died back in 2001.  Ms. Mattison subsequently was implanted with her deceased husband's frozen sperm, conceived and gave birth to twins.

Ms. Mattison's application on behalf of the twins for survivor benefits was denied by the Social Security Administration.  The SSA took the position that the children did not survive their wage-earner father under the definition of the terms "child" and "survive" in Michigan's probate code; the Estates and Protected Individuals Code.

In listening to oral arguments in the case, it did not appear that the High Court Justices, particularly Justices Robert Young and Stephen Markman, were very receptive to Ms. Mattison's position.  Justice Young exhibited palpable irritation that the certified question, which appears to have no statutory support in EPIC, took so long to make it's way to the Michigan Supreme Court.

Although many other states are considering similar questions, we here at the Law Blogger predict that our Supreme Court will decide in this case that the Mattison twins are not entitled to receive the survivor benefits from their deceased wage-earning father on the basis that they simply did not exist at the time of their father's death.

Toward the end of the very brief oral arguments, one of the Justices asked Ms. Mattison's attorney whether he had considered raising the frozen sperm survivorship issue with the Michigan Legislature.  We agree with Justice Young when, during oral argument, he wondered aloud whether the certification of this particular question was essentially a violation of the constitutional separation of  powers.

Unfortunately for the Mattisons, Courts cannot legislate from the bench.

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Saturday, August 11, 2012

Consumer Reports Reviews Self-Help Probate Legal Sites

In today's world, everybody wants to be the lawyer; especially their own probate lawyer.

Consumer Reports, that trusty publication that does in-depth research on products that we consumers know little about, has targeted three of the most popular self-help legal websites in the attached report.  The web sites reviewed are Legal Zoom; Nolo; and Rocket Lawyer.

The most popular of the three sites is Legal Zoom, founded by Los Angeles lawyer Robert Shapiro, and hawked by the likes of Rush Limbaugh.  The site attracts many people interested in completing their own estate plan.

The CP review of the sites is luke warm, as you may expect.  The general conclusion is that, if you have a very simple matter, these sites are "better than nothing."  If you have any complexity to your legal matter, however, you will be better off hiring a lawyer.

As any lawyer knows, the devil is in the details in any legal situation.  One-form-fits-all simply does not work in the law. Sure, lawyers are trained to use checklists and forms, but every document drafted must be customized to some extent to ensure that the client's objective is completed within the four corners of a document.

These days, with on-line review services and easily accessible electronic profiles, you can do a lot of preliminary groundwork and research at your computer.  This is true of your specific legal issue, as well as for the lawyers who are in the best position to handle your matter.

So take a look at the linked report before paying fees to one of these sites.  And be careful out there...

www.clarkstonlegal.com

info@clarkstonlegal.com

Monday, May 21, 2012

Your Digital Estate Plan

Do you ever wonder what becomes of a deceased person's Facebook profile?

Increasingly, folks are compiling several digital profiles on the ever-popular social media sites now embedded into the Internet.  Many of us have thoroughly fleshed-out these electronic profiles.

Well, what happens to your digital persona when you die?  How do we assist our family members with the dismantling of these often extensive robust electronic profiles?

Below are examples of typical digital "assets" contained in an average modern person's legacy:
  • Social media profiles such as Facebook, LinkedIn, YouTube and a host of others
  • Professional profiles [I maintain at least a half dozen and counting]
  • Bank accounts, loan accounts, mortgage accounts
  • Investment accounts such as eTrade or Ameritrade
  • Uploaded photos
  • Uploaded articles
  • Education accounts, including alumni account profiles
  • Gaming sites
  • Email profiles and communications [Most people have at least two email accounts these days.]
  • Digital media accounts
  • Cloud computing profiles or accounts
  • On-line store accounts, particularly those with a social media angle such as iTunes and Amazon
There are other examples, to be sure.  Any site that you've had to log-on to, create a profile, and post content, or place orders, is a component of your digital inventory.  That's a lot to keep track of...

If your situation is typical, you have some similar passwords, or a theme running through your accounts, but due to the specifications of the particular site, most of your usernames and passwords are different.  Also, you probably maintain a list of your names and passwords somewhere; probably on your computer.

There are, of course, some web-based products and services that assist with the management of your digital profile:
The first step in managing your digital legacy is to list all of your on-line "assets" and list the usernames and passwords associated with those accounts.  You will be saving a family member or friend untold hours on the phone, or on the computer, when they try to figure it out in your absence.

Once you have compiled your all-important digital inventory, the next step is to reference this list and attach it to a power of attorney document.  This will allow your attorney-in-fact to manage your accounts in the event of your temporary absence or incapacity.  

Ditto to your will; include an instructional paragraph referencing and attaching your digital inventory.

If no instructions are provided, Michigan does not yet have laws governing the posthumous management of a person's on-line "assets".  So far, only Oklahoma and Idaho have such laws, with Nebraska not far behind.  [Where is California in all this?]

Therefore, if you die "digitally intestate", what happens to your digital profile is up to the particular service provider.  For example, Facebook has long taken the position, based on its robust operating agreement that you agreed to when creating your account, that FB owns all of your posts and content.  When you die on Facebook's watch, they memorialize your account; restricting views and posts to friends and family.  Also, the account is closed if requested by your next-of-kin.  

Some folks, however, do not have any next-of-kin.  What then?

Here are some options for the proactive among our readers.  Some posthumous services will send an email composed by you, or by your designated personal representative, to a designated list of contacts.  Here is a sample list of such services:

Call it another characteristic of our modern life; once we are gone, our digital profile lives on for a time.  In this fast-paced era, it's amazing how fast such a profile will become outdated.

Taking the right steps will allow you to manage that profile from the grave...