Some people eat, sleep and chew gum, I do genealogy and write...

Tuesday, March 11, 2014

Digital Death -- Disregarding the Law

I have read some articles lately about the disposition of my digital assets at the time of my death and that has piqued my interest as to why genealogists should be interested in this topic. I suppose we have no more interest than the rest of the online population and probably statistically less interest just from the demographics of the genealogical community. Over the years, I have taught and been on the receiving end of quite a number of presentations about the importance of making a will. These presentations are usually made by a legal practitioner who just happens to need the business and would be more than happy to charge you a fee for preparing a will or a trust and possibly a living will, a durable power of attorney and any number of other very useful and badly needed documents.

These attorneys and many of those in the "estate planning" community are more than willing to jump on a new digital bandwagon if it means more business. But there exists a certain detectible tension between those who are legal practitioners and those who disparage the need for real attorneys in the estate process.

Since Norman Dacey's bombshell of a book, How to Avoid Probate, hit the bookstores in 1965, there has been an underground of anti-legal profession "estate planners" most of whom coincidentally sell insurance or investments of some sort or another, and who are willing to help you avoid the predicted exorbitant legal fees associated with the probate of your estate. You can read Norman Dacey's obituary from the New York Times of 19 March 1994. The article does not say whether or not his estate had to go through probate.

It has always been interesting to me that there are a significant number of people out there who are absolutely convinced that they need to "avoid" probate at any cost without actually knowing what a probate is or even how much the probate of their estate might cost. I think the same thing is happening today with all of the advice about disposing of your digital assets. Most of the schemes involve having someone or some website administer your "digital assets" upon your demise. Unfortunately, very few of the advertised plans seem to take into account that we have thousands of years of probate law that may have something important to say about the whole process.

Unfortunately, horror stories about multi-million dollar estates that are wiped out by the "attorneys" are commonly passed around as proof that you need to avoid probate. What they usually don't tell you about the cases is that the expenses are incurred as a result of family members who refuse to compromise and are willing to spend the entire estate litigating over who in the family is right and who is wrong. All we are really doing with these digital estate schemes is to open another avenue for dispute among family members. What never seems to get discussed much are the multitude of families where the parents purchase an expensive "estate plan" to avoid probate and the children end up fighting over the estate and a probate is still necessary to settle the differences. Had the parents known the consequences of their elaborate estate plan they would have opted for a supervised probate in the first place.

The first question to ask concerning any of these promoted plans is whether or not the appointment of some kind of agent, living or corporate, complies with the law concerning disposition of your property upon your death in your state. Each of the different states in the United States have their own version of the formal requirements for the execution of a valid will. There is no valid one-size-fits-all approach to testamentary documents. Only sixteen of the fifty U.S. states have adopted the entire Uniform Probate Code and even many of those states have subsequently adopted changes in the so-called "Uniform" code.

Absent court cases construing the proposed online digital estate plans, there is absolutely no way to determine their legal effect. You can only ask yourself if you are willing to take the risk that the plan you have chosen will backfire on your heirs. There are a few things that are absolutely clear about the problems associated with digital assets. Hers is a short list:

  1. There are few laws that deal with the disposition of digital assets
  2. Most state laws have vague or no provisions for assets that have no verifiable locus. Internet based assets do not necessarily have a state of residence.
  3. In many cases, the law in unclear whether or not the websites' terms and conditions overrule local state laws. For example, where is your Google account located?
I guess that brings me around to the first question. What does all this have to do with genealogy? I ask this in the sense that many things that happen in a probate case are helpful to genealogical research. But the genealogists' interests are far different than the average individual. We would like long involved probates with lots of documents and lots of disagreements. The more the merrier. So why are we promoting avoiding probate? Or are we?

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