Protect your parents' internet identity after they're gone.
The internet is now used for a wide variety of activities we take for granted as part of our daily routine. We use Facebook to share thoughts and photos, Twitter to keep in contact and on-line providers to manage our bank and credit card accounts. These items of information, memories and data are often characterized as “digital assets.” On September 29, 2016, a bill was signed into law by Governor Cuomo which enacted New York’s version of the “Uniform Fiduciary Access to Digital Assets Act” (the “Act”) which nineteen (19) other states have also enacted into law.
If they are in a situation similar to other middle class families in New York, a large portion of your parents’ Estate will pass by beneficiary designation, not according to their Wills. Consider two of the largest asset categories comprising their combined Estate. They have one or several retirement accounts and they have life insurance and annuity contracts with a death benefit.
Your parents’ Wills contain details which are specific to the time they were signed. The Wills name an Executor and other fiduciaries, identify a spouse, children and other intended beneficiaries, and reflect the state of the law at the time of signing. The circumstances of the person named as an Executor or Trustee may have changed.
More often than not, a Will is prepared, executed and then forgotten. Years, even decades, may pass since your parents’ Wills were signed. A lot can happen in those intervening years. The attorney who drafted the Will could have died or retired. The two persons who “witnessed” the Will can now be unavailable. You must have the original Will of your parent to Petition the Court to admit it to Probate. In addition, you’ll need access to the two persons who “witnessed” the Will’s execution; or, the use of what is called an “affidavit of attesting witnesses.” Now is the time to locate the “original” Will.
A well-structured Estate Plan must consider the possibility that your parents will be alive but incapacitated and unable to make their own financial or health care decisions. A Health Care Proxy (“HCP”) is the document in New York which allows your parents to select a person (called an “agent”) to make their health care decisions in the event they are unable to do so.