Estate Planning in a Digital Age

I recently read an article about estate planning for younger clients. One of the more interesting sections addressed the particular challenges of estate planning in a digital age. Many individuals have their own webpages, domain names, e-mail accounts, twitter accounts, etc. Even though these are not traditional "tangible" pieces of property, it is prudent to consider these items assets for estate planning purposes.

First, it is important for an individual to leave a list of usernames and passwords that would allow an agent under a Durable Power of Attorney or a Personal Representative under a Will to access these items. There are obvious security concerns with creating such a list, and it would probably be prudent to make an effort to safeguard this information. Where a client has a significant amount of "digital" property, it may even be advisable for any Will or Power of Attorney to include specific language referencing the power to manage and control digital assets.

Second, an individual may want to make specific reference to these properties in a Will to dispose upon it on death. Even though the Will may address this property, it will also be subject to the terms and provisions of any agreement with the e-mail or host provider. For example, I was curious about whether my twitter handle (@jackcarney) could survive my death and be left to ... well, probably another Jack Carney. Twitter's terms of service do not address this issue and it would probably be something my Personal Representative would need to resolve (assuming anyone thought my twitter handle was a valuable resource). I have not yet sold an item on Ebay, but if I did and should die before the end of the sale, my Personal Representative would be responsible for canceling or closing the sale, in addition to collecting any proceeds. At the very least, he or she would need access to my Ebay (and possibly Paypal) account.

There will likely be more significant developments regarding estate planning and digital property within the next several years, as these assets are becoming a more common part of everyday life.

The Bright Side of the Economy

The economic situation is adversely affecting a lot of people. However, there may be a bright side in the area of transfer tax planning. The federal estate and gift taxes are meant to tax the transfer of wealth from one generation to the next. The tax is based on the value of one's assets. As many of our assets (homes, stocks, properties) are at historically low values, this environment can be a perfect opportunity to transfer wealth at a low tax cost.

Now I am not telling anyone to die, but rather to consider making lifetime gifts of assets. Each individual can pass up to $13,000 to another individual without gift tax consequences (spouses can split a gift and give up to $26,000). In this environment, you can gift more shares of stock using the $13,000 umbrella than you could have three or four years ago. If the shares increase in value after the gift, then that appreciation will be out of the donor's taxable estate and will be included in the estate of the recipient.

Another aspect of this current environment is historically low interest rates. These interest rates can be important for certain wealth transfer vehicles (such as a Grantor Retained Annuity Trust or GRAT), but also for some simple transactions, such as intra-family loans. A family member loaning money to another may not want to charge an interest rate. However, the IRS has established a minimum rate that must be charged in order to avoid having the failure to charge interest treated as a gift. These minimum rates are currently low and therefore it may be an excellent time to explore these options.

As always, these words are not meant to apply to anyone's specific situation. If you have any questions or concerns, please consult your legal or tax advisor.