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Digital Assets 101: How to Account for Digital Assets in Estate Plans

Digital assets are a popular topic and an ever-important aspect of estate planning with today’s digital age. Even simple accounts such as Facebook and Twitter have tremendous transferable value to beneficiaries. However, beneficiaries and clients alike believe that merely sharing a password or access gives the beneficiaries the rights to the account. Ironically, this may constitute a violation of the law if this is how a digital asset is handled in an estate. It is important to understand the transferability, the value and how to provide instructions for transfer.

When planning for digital assets in an estate plan, it is important to help your clients identify their digital assets. Certainly, the best place to start is with an inventory. Try asking them if they have some of the popular digital assets and explaining the intrinsic value to the beneficiaries. Once they have a comprehension of the value, they are more likely to identify digital assets they own. While they may not initially see value in digital asset planning, photos, videos and stories go a long way in legacy planning. Helping clients realize the value of legacy planning can assist with digital asset planning.

After taking inventory, you will have to familiarize yourself with some of the policies of a particular digital asset. Digital assets can be transferred in similar ways to normal assets. Some will allow the account holder to appoint a legacy person and some need specific language in wills or trusts to transfer the digital asset. The only caveat is that some assets (unlike liquid and tangible assets) are not considered property and simply cannot be transferred. Most of this occurs in loyalty reward programs.

One of the most popular digital assets is Facebook. The reason for its popularity is because of the memories it holds. A user can appoint a legacy sponsor to handle the account once someone has passed. The user can also choose to delete the account. The challenge here is similar to that of a beneficiary designated account, someone must be chosen prior to death. Once someone dies and Facebook finds out they memorialize the account. This basically freezes the account and provides no access. Just like setting beneficiary designations (and revisiting them), digital assets that have legacy access should have those designations set and revisited periodically.

Loyalty reward programs are equally as popular. While most are not that friendly within an estate, some have clauses that can be accounted for in legal documents. Let’s take American Airlines. American Airlines has some language in its AAdvantage program terms and conditions which does not specifically allow transfer after death, but the airline gives itself a “loophole” to transfer the miles after approved legal documents have been submitted. Accounting for specific language in estate documents can be vital in transferring a specific digital asset with significant value. This is an excellent example accounting for digital assets within a will or trust document.

Digital assets can be tricky when accounting for them in an estate plan. The key is to take proper inventory, gather some familiarity or help and account for transfer. The great news is, this is an excellent conversation starter, a differentiator in practice and a way to provide great value to your clients. In the digital age we are in, digital assets are becoming more important in estate planning. Take the time to learn how to account for them in estate plans, it will be well worth it.

 

Scott Huff_Updated

Scott Huff is the CEO of Yourefolio.

 


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7 Do’s and Don’ts of Collaborating with Estate Planning Attorneys

Financial planners are uniquely suited to be the quarterback of the estate planning process and can motivate clients to do estate planning with an attorney. But planners must be careful to understand that they are not the experts in estate planning and should normally defer to the expertise of the estate planning attorney.

As an estate planning attorney who works mostly with financial planners with their clients, I have spoken on the topic of successfully working with estate attorneys to financial advisers, I teach estate planning to people who want to be CFP® professionals, have been the president of an FPA chapter and have been involved in the financial planning community for more than 25 years.

In the past I have been approached by financial planners who want me to draft estate planning documents at their direction, without allowing me to meet or talk to the client.  I have always refused this relationship because they are not collaborations or allowing me to do what is best for the client, but instead the financial planner is treating the estate planning lawyer like a mechanic and is not respecting the a lawyer’s knowledge and experience.

I am also sometimes faced with financial planners who ask me almost immediately what the fee is going to be, as if what I do is not as important as what they do, or that if they are involved in the process, it makes it easier so I should charge less. My typical response is to ask them if they would charge less if I referred a client to them or was involved in the financial planning or investment management process, and that answer is always, “No.”

So, here is my advice to successfully work with good and experienced estate planning attorneys:

1) Do not expect, or even ask, for the estate planning attorney to refer a client to you. Most really good estate planning attorneys get most of their clients from advisers and do not have the ability to refer clients. However, an estate planning attorney who understands and respects the financial planning process should, over time, be able to refer significant financial planning and investment management business to financial planners. In the last year, I have given referrals of clients to financial planners who collectively have about $50 million in assets. Those referrals go to those financial planners with whom I have worked, have met their clients, understand how they work and who respect what I have to bring to the relationship.

2) Do not negotiate a lower fee for your client. It is acceptable to talk fees and fee ranges, but do not say to the estate planning attorney that he should charge less to your clients for any reason.

3) Do come to any meeting you want with the client and the estate planning attorney. Do not work with an estate planning attorney who tells you that you can’t do this

4) If you or your client wants, review the estate planning documents before signing. Have an open and frank discussion with the attorney without the client present about any problems or questions. Do not work with an estate planning attorney who doesn’t want to send you drafts (obviously the client has to agree) or who just discounts any of your comments.

5) Do be the person who drives the implementation of the estate plan. If you do this, you will become more in control of the client, will probably get more work from the client and his friends, and be in the position to do the right thing. So, I rely on the financial planner to help the client re-title assets, change beneficiary designations, etc.

6) Do monitor any estate planning technique to make sure everyone is following the economics. Be in control of the process, the implementation and the follow-up.

7) Do motivate clients to meet with the estate planning attorney. Encourage them to meet with the estate planning attorney initially and when changes are needed.

There are many great estate planning attorneys out there. Financial planners must respect what an estate planner does and the estate planner must respect what a financial planner does. If you are referring your clients to someone who does not respect what you do or how you do it, then find someone else. If the estate planning attorney does not allow you to be part of the process, find someone else.

GaryAltmanThumbGary Altman
Principal Attorney
Altman & Associates
Rockville, Maryland

 

Editor’s Note: This post originally appeared in our Financial Planning Association’s FPA Connect community as a response to a query about the processes for working with estate attorneys. To contribute to the conversation, visit FPA Connect

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