Will Essentials: What happens to your tangible and digital “stuff” when you die?
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Wills date back thousands of years. Much like today, they helped perpetuate the family upon a family member's death or permitted an individual to dictate the disposal of their estate. Today, wills continue to play a crucial role in continuing one's family history.
Benjamin Franklin reportedly said, “In this world nothing can be said to be certain, except death and taxes.” So why not prepare for the inevitable, especially if you can make it relatively painless?
“We encourage people to have a conversation with their kids and grandkids and ask them about the things around the house they would want,” says attorney Geoff N. Germane, AEP®, EPLS, and shareholder at Kirton McConkie. “Having that conversation doesn’t make you any more likely to die, and it is possible for family members to have that conversation in a positive way without sounding like they’re eager for Mom and Dad to pass on.”
While adult children and their elderly parents should certainly work together to make decisions, young families should also prepare a will—if not to designate distribution of assets, then legally to express their preferences for who will become their children’s guardian in the event of the unthinkable.
“If people have minor kids, I’d strongly encourage them to have a will, even if their estate is small,” Germane says. “The most valuable thing you have is your kids. You can name your preference [for a guardian] and a backup to that. Your nomination is not guaranteed, but it will carry significant weight in court.”
Preparing a good will or trust is not as simple as writing your wishes on a napkin, but it isn’t impossibly difficult either. Here are answers to some common questions about wills and trusts and how to prepare your family—young or old—for the unexpected.
How Do I Get Started?
Before you find an attorney, you can start with a sheet of paper or spreadsheet that lists all the items that are important to you and that designates the people you want to have the items. If you adequately refer to this list—sometimes called a “personal property memorandum” or something similar—and make clear your intent to incorporate it into the will, it’s legally binding. Better yet, this list can be updated and changed as many times as you’d like with a new signature but without re-notarizing your will—at least in some states, including Utah. If it’s not mentioned in your will, though, it may be considered a nonbinding letter of wishes that your personal representative may or may not choose to honor.
If you really want your will done well, it’s best to meet with a good estate planning attorney. A few things can help you identify a good lawyer, Germane says: (1) special designations that indicate expertise in estate planning, (2) a focus on estate planning only, and (3) recommendations from respected accountants and financial advisers.
"If people have minor kids, I’d strongly encourage them to have a will, even if their estate is small. The most valuable thing you have is your kids. You can name your preference [for a guardian] and a backup to that. Your nomination is not guaranteed, but it will carry significant weight in court."
Geoff N. Germane, Shareholder/attorney at Kirton McConkie.
After you’ve created a will or trust with your attorney, you should update it at every major milestone in your life, such as the birth of a child, a marriage, a death, a divorce, or a move to another state. Changes in tax law can also create a need for will updates.
Will or Trust?
Every person’s needs are different, but the same basic principles apply to everyone. In short, the best time to ensure proper disposition and care of the things that are important to you is now.
“When you pass away, nobody has authority to access or manage or transfer any property in your name unless they are appointed by a court,” Germane says. “To pass property, you can use a variety of arrangements. Two common arrangements are a will and a trust.”
The two can do the same things, but they have some differences. In a will, you nominate someone to be your personal representative. Only the court can appoint this executor (or executrix, if she’s female), and there is a period of time when any interested person can object to the nomination. Once an executor is appointed, he or she can act on behalf of a deceased person.
Alternatively, you can use a trust, which is administered privately and gives the individual you designate as trustee the power to transfer property to your heirs or to whomever you choose without needing a court appointment.
What Will Happen to My Important Items When I Die?
A question at the heart of all decisions regarding your will or trust is what will happen to items that are important to you. And while either document is meant to express your wishes after your death, some things should be discussed face to face.
When it comes to distribution of your important items, you generally have five options. You can (1) give them to a special collections library or museum, (2) pass them on to family members or friends, (3) sell them, (4) throw them away, or (5) let a court-appointed executor decide what to do.
The best time to choose one of these options is while you’re alive, since you can personally oversee the distribution of important artifacts. After a person dies, the last two options become more common.
“Talk to your kids and find out what things are interesting to them,” Germane says. He suggests using a personal property memorandum and using your family’s wishes to create it. “Find out what things are important to your kids, and use their feedback to fill out the list. You can change that document at any time without needing a witness to change your entire will—you just rip it up, and start over.”
Beyond the items specifically listed in your will or on a personal property memorandum, your chosen executor (or trustee) will make the rest of the important decisions.
One common concern is whether a person’s will is legally binding, but according to Germane, aiming to create a legally enforceable will is not nearly as important as creating a will that can lead to the outcome you want.
“An attorney is not what makes it legal or enforceable, but rather what makes it a good fit,” Germane says. “Every single document I have ever reviewed for a client that was generated by an online provider turned out to create a result that was different from what the client wanted once the client became informed—every last one. The standard we should shoot for should not be ‘Is this legally enforceable?’ but rather ‘Does this do what I want it to do?’”
What about My Special Interest Collections?
Among the more important items to distribute are your special interest collections—for example, family history documents, a collection of baseball cards, a closet full of fabric, your personal library, or other goods with special meaning to you.
“The choice of executor in your will may be the most critical decision a genealogist”—or anyone—“makes,” says Judy Russell, a genealogist with a law degree who calls herself The Legal Genealogist. “It’s an unlimited power to an individual to dispose of your estate however they see fit—if you haven’t specified—down to the last details.”
As such, it’s wise to choose an executor who shares your attachment to important items.
"The choice of executor in your will may be the most critical decision a genealogist—or anyone—makes. It’s an unlimited power to an individual to dispose of your estate however they see fit—if you haven’t specified—down to the last details. If you let the law take control, they’re only going to assign dollar amounts to your assets. If an item has no perceived marketable value, it’s going to get trashed. [Probate court] doesn’t dabble in assigning sentimental value."
Judy Russell, The Legal Genealogist
“If you let the law take control, they’re only going to assign dollar amounts to your assets,” Russell says. “If an item has no perceived marketable value, it’s going to get trashed. [Probate court] doesn’t dabble in assigning sentimental value.”
Rather than leaving these important items to chance, specifying exactly who you want to have them—or even possibly distributing them to family and friends before your death—can eliminate problems down the road. Remember, if you don’t specify to whom an item should be distributed, the executor will likely make that decision.
How Can I Preserve My Personal History for Future Generations?
No matter what your interests are, there’s one collection everyone will want preserved—personal history, including photographs, journals, slides, videos, and other memorabilia.
These items constitute a record of your legacy, and the collection can be of great value to future generations. But if items are faded, difficult to read, or one-of-a-kind, your family could be in danger of losing them forever. “These materials break down over time,” says Thomas MacEntee, owner of High Definition Genealogy, a genealogy educator and author who travels 50,000 miles every year teaching people about technology, genealogy, and how to preserve genealogy research. “Millennials are used to using smart phones to take photos, and they have digital copies of everything, but baby boomers are different. Our things are tactile.”
Even though their memories are recorded in different formats, people from all generations should take special care to ensure their memories are preserved.
MacEntee suggests making digital copies of your documents—or hiring someone else to make copies for you—so your family can view and preserve them. Several companies specialize in converting VHS videos to DVDs, for example, as well as scanning photos and journal pages.
“These things make great gifts,” MacEntee says. “Then your family can enjoy old home videos in a DVD player."
Of course, digitizing documents isn’t a perfect plan. As technology changes, so will the way we experience different types of media. In order to keep family documents viewable over time, family members must update or migrate to newer media types and back up files externally. Photos should also be printed periodically. FamilySearch Memories is one place to preserve these important photos, stories, and audio files. (Video file upload capability will be available in the future.)
"[Millenials] are busy doing what I call ‘life streaming. They’re documenting life through photos and posts, but they’re not very good at archiving and saving the information. So it would be easy to just lose them forever."
Thomas MacEntee, owner, High Definition Genealogy
What Will Happen to My Social Media Accounts or Digital Assets?
Many people—especially millennials—are recording their lives digitally or online. But that doesn’t necessarily mean they’re creating a lasting record or that those assets will end up in their beneficiaries’ hands. “They’re busy doing what I call ‘life streaming,’” MacEntee says of social media and digital service users. “They’re documenting life through photos and posts, but they’re not very good at archiving and saving the information. So it would be easy to just lose them forever.”
"We include a paragraph in our wills and trusts that authorizes the trustee to access all digital accounts and assets and to change them—to exercise the rights the original owner had, but that may run counter to the social media companies’ terms of use, which might say that no one else can access a person’s account even with the person’s permission."
Geoff N. Germane, Shareholder/attorney at Kirton McConkie.
You might think that giving someone your passwords would safeguard you against losing your digital information or would ensure that your executor or trustee has access to your digital assets, but it’s not quite that simple. Digital estate planning laws vary from state-to-state and are woefully outdated overall.
“We include a paragraph in our wills and trusts that authorizes the trustee to access all digital accounts and assets and to change them—to exercise the rights the original owner had,” Germane says. “But that may run counter to the social media companies’ terms of use, which might say that no one else can access a person’s account even with the person’s permission.” Some popular social media sites offer you the ability to designate a family member or friend as a "legacy contact" to look after your "memorial" or memorialized account when you die. Depending on the site, it gives them authority to close or memorialize your account. Facebook even allows you to tell them whether you want to delete your account when you die or memorialize it. Look into each of your social media accounts' provisions for legacy or memorializing services to understand your options, if any.
Some sites prohibit anyone but the account holder to access the account; others allow trustees or executors to access social media accounts with proof of death. Not all sites have a policy at all, but as baby boomers grow older, companies will need to create specific procedures. A good lawyer can help you navigate the laws respective to your digital assets and make sure your important information won’t disappear without being preserved.
Everyone Needs a Will
Planning for the inevitable is not always pleasant, but it brings peace of mind. All people—old and young, male and female, wealthy and lower-income—need to determine what will happen to their possessions and their minor children (if they have any) in the event of their death. Making these decisions ahead of time can make things easier for family members, prevent disputes, and preserve legacies for generations to come.
