Challenges in Will Making & New Innovative Digital Storage Solutions

A couple of years back we heard this tragic story about a well-off, retired couple. Mrs Iyer was diagnosed with stage IV cancer and passed away soon after. A year later, Mr Iyer was diagnosed with Alzheimer’s disease. Friends and extended family rallied around, wanting to help but were unaware of their assets or whether they had made a Will. It was a helpless situation. As a DINK (double income no kids) couple, the Iyers had always been prudent with their expenses, saving and investing wisely so that they could lead an independent retired life.

 

They had made mirror Wills bequeathing all their assets to each other (in case one of them dies before the other) and bequeathing it all to an NGO in case both happen to die together. They had just not contemplated a situation where one of them would be incapable of  taking decisions for oneself or living independently. How does one prepare for such situations?

 

One way is to write a letter of instructions which can serve as a helpful guide for those who have to settle your affairs if you are incapacitated or once you are gone. 

 

A letter of instructions is an inventory of all your assets and their whereabouts: the names and contact information of bankers, brokers, attorneys who handle your assets; necessary information about all liquid assets (including bank, demat accounts, retirement/investment details); details of insurance coverage; location of legal and financial documents such as bank statements, tax returns, birth and marriage certificates, divorce and citizenship papers, titles and/or deeds for any real estate properties; location of safe deposit lockers and their keys; instructions for the care and placement of pets etc. 

 

It can also include informal information regarding the dispersion of assets, such as who would get a sentimental possession or heirloom (the Will may state that these articles are to be distributed according to the letter). 

 

One can also add preferences about what happens to our digital footprint with instructions about social media accounts. One can use the letter of instructions to expand on one’s living Will, elaborating on the medical conditions under which we would prefer to be taken off of life support, in more detail than is permitted in a medical/ healthcare power of attorney.  

 

The letter provides valuable insight to anyone responsible for settling your affairs or even executing your Will. Unlike a Will, this letter has no legal authority but offers guidance to the executor of your Will and to your family for things not covered by the Will. It allows you to leave a final message for your family without the formality that comes with a legal document.

 

The letter of instructions may also mention who can make financial decisions for you in case you are physically /mentally incapacitated in future. As per the legal terms, it would require the incapacity to be certified by a doctor.

 

Only one nominee can be appointed in respect of bank-deposits and lockers under sections 45ZA to 45ZF of the Banking Regulation Act, 1949. Thus, under the current provisions it is not possible to have successive nomination in a bank account. Successive nomination provides auto-passing of nomination to the next nominee in case of death of the first nominee. The situation arises when spouses of aged couples nominate each other as nominees where, in case both of them die, the legal heirs may have to go through a cumbersome procedure of getting a succession certificate.  A Will allows you to make more detailed decisions, but in many jurisdictions which require a probate, the process itself is slow, expensive and often harrowing.

 

After a year that has forced us to think about our mortality, people are getting serious about writing their Will, as they re-assess their lives, after the destabilising events of the pandemic. In such a situation, letter of instructions and Will would play a key role.

 

Here are 36 most commonly asked questions and answers penned by Advocate Vimal Punmiya which will help you get all your facts in order while making your Will.

 

Having written a Will and a letter of instructions, a sensible thing to do is to tell a close friend or family member or lawyer about where it can be found. You should always tell someone you trust where your Will is stored while you are still alive, as not doing so may even mean that they might never find it.

 

Beneficiaries are often kept in dark about the Will contents and a list of assets is often not readily available. The main reason for such secrecy is that the testator might face hostile behaviour from aggrieved legatees when he/she is alive. Parents are also hesitant to discuss/ disclose finances with their kids. 

 

The other thing that people normally do is tell the family that they have registered a Will and then people look it up after the person’s death. Another option is to tell the family it is with the CA/lawyer (if they have trusted people) - but not everyone trusts lawyers and CAs since there are cases of them misusing the trust placed in them. So Wills are always shrouded by secrecy and controversies. This is why sometimes legatees produce fake Wills only to contest genuine Wills.  How to safeguard from this?

 

Sometimes the Will copy is not found at all. If a person dies without a Will (or if a Will is not found), State law determines through a formula what happens to the person's assets without considering the special needs of any individual or family. Without a Will, surviving family members may face unnecessary hardship at a difficult time and the probability of nasty, long-drawn court battles over one's estate increases.

 

While a Will does not need to be registered to be valid in India and can be hand-written, it needs to be signed by the person in the presence of two witnesses for it to be legal. Electronic copies of a Will, whether stored online or otherwise are not valid in India. In India, you need to have a physically signed copy of Will for it to be valid before a court of law.

 

A new entrant to the market, Will & More is offering an innovative digital solution to solve this problem. They provide an online facility to register the location of your Will copy (Let’s say locker no. 23, SBI Bank, Dadar, Mumbai) so that after your death, your loved ones can easily locate the Will.

 

They also provide a facility to store a letter of instructions on their portal. Advocate Joby Mathew, who is behind this new innovative idea explained how the product works. 

 

Mr Mathew said “Like all important documents that relate to your property, your Will needs to be stored in a secure manner and at a location that is accessible and known. The location of your Will could be at a special place in your home, a bank locker, with a friend or with a lawyer. Will & More allows you to register the location of your Will securely and confidentially. 

This offering is along the lines of Certainty - the National Will Register in the UK. 

 

Will & More allows online payment and gives you a receipt number/ client ID, which you can store along with other valuables for future references. You need to be specific in your description of the location of your Will and describe its exact whereabouts. These remain confidential and are not available even to the website or the law firm behind it. An important advantage of this is that the information cannot be used to collect data for hard-selling wealth management products or legal services, as has happened with many free and easy online Will services.

 

Clarifying further on the storage solution aspect, Mr Mathew explained, “We use  Amazon Web Services (AWS) servers to store the data which is uploaded by clients; the data is stored in such a manner that even the client does not have visibility; when new data such as Will location or letter of instructions is uploaded, the earlier data is overwritten. Upon a successful search, the Will  location and letter of instructions is sent out by the server to the email address of the nominee without any manual intervention from our side except to validate the circumstances (death or permanent disability) which trigger the email. We will not be able to retrieve the data in case of loss of credentials. (Users can however change passwords or generate a new one if the earlier one is lost). The passwords are not stored in the system and therefore, we will not be able to access the data”. 

 

Will & More also offers 5 different do-it-yourself (DIY) Will templates which can be downloaded and used to customise your own Will starting at Rs1500. 

 

The cost of registering the location of your Will and the letter of instructions with Will & More would be Rs5500 to Rs 6500 for a period of 5 years, which makes it rather expensive. 

 

 “The  letter of instructions alone can be made available on a specific request to the persons or nominees named, in the event of the registered user’s incapacitation due to accidents, or debilitating illnesses like Alzheimer’s or Parkinson’s disease, or any other condition that would render a person of unsound mind, after submission of valid medical documents/certificates and after due verification”, said Mr Mathew.

 

The location of your Will and the contents of your letter of instructions are only released to nominees/ beneficiaries on providing a copy of your death certificate and proof of identity. However, it also charges a fairly stiff fee of Rs2,500 to search for the location of the Will and letter of instructions on the portal.

 

Will & More aims to fulfil the gap in the Indian Will making and storage practices and to promote a culture of leaving a letter of instructions.

 

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Challenges in Will Making & New Innovative Digital Storage Solutions

Surge on wills: Fearing death by coronavirus, people ask lawyers to write their last wishes

Apr. 3--Lawyers are being bombarded with requests to write wills, update estate plans and prepare health surrogate or "pull the plug" documents as people are confronted by the realization that they could be diagnosed with COVID-19 and dead within days.

"Estate planning is a fairly morbid topic. Nobody wants to do it. But it's not an if proposition; it's a when proposition," said Joshua Rosenberg, partner at Kelley Kronenberg who specializes in estate planning, elder law and probate and guardianship litigation. "Because of coronavirus, people have come to the abrupt conclusion that they cannot procrastinate. You could be infected and very quickly find yourself in a life or death situation."

As the coronavirus crisis escalates, catastrophic projections of 100,000 to upwards of 240,000 deaths in the United States are forcing people to act on long-deferred intentions to get their affairs in order. No one is immune. Legal experts urge all mortals -- not just the elderly and not just the wealthy -- to put their end-of-life plans in writing.

"We are seeing a tidal wave, at least a doubling in the volume of calls and inquiries," said Miami lawyer Bruce Stone. "Clients who thought they could delay this item on their to-do list are now in panic mode and want it finalized immediately."

The last time estate planners experienced a surge was in 2012, when people worried that Congress would lower the threshold of the estate or "death" tax.

"Back then it was mainly rich people worried about money," Stone said. "This is worse. Now people are afraid they are going to die."

Top priorities are creating a living will that states your wishes should you become incapacitated, designating a surrogate or proxy to make medical decisions, granting power of attorney to someone to make financial and legal decisions and preparing advance directives such as a Do Not Resuscitate order.

A plan, including a last will and testament or trust that spells out what happens to your assets and who will be guardian to minor children upon your death, spares you the mess on "Succession," the HBO TV series about an aging media mogul playing power games with his heirs. Peace of mind is preferable to the family in-fighting, exorbitant legal costs and hours in court your survivors will encounter if you leave your fate in limbo.

"You do not want to get turned back into the court system or find yourself a ward of the court and face the indignity of having your life dragged through court," Rosenberg said.

He and Stone cited the case of Terri Schiavo, the Florida woman who lived in a persistent vegetative state from 1990 to 2005 as her husband fought to remove a feeding tube and her parents fought to keep her connected. At one point, Gov. Jeb Bush intervened to have the tube reinserted. After years of lawsuits, injunctions, appeals and stays, Schiavo was allowed to die. She was 41.

"In the Terri Schiavo case, there was no written recitation of whether she wanted to be kept on life support or not," Rosenberg said. "Her husband and her parents had different goals. The case illustrates all the painful battles and financial disasters that can befall your loved ones if you don't have a living will."

Coronavirus has presented a new wrinkle in the best-laid plans. Typically, your health care surrogate would be in the hospital with you advocating for your desires if you are not able to express yourself. But the COVID-19 disease is closing off hospitals to visitors and confining patients to isolated circumstances. Lawyers recommend adding language to your documents that will authorize your surrogate to give instructions over the phone, by email or during an online conference. And make sure to amend any old documents that may have prohibited intubation.

"We're hearing heart-wrenching accounts of patients on a gurney in the hallway of a hospital hooked up to a ventilator with no loved one by their side, and families saying goodbye on cell phones or walkie-talkies," Stone said. "I feel like the grim reaper but I'm telling clients you've got to assume you may die alone. Your family can't get in to see you or talk directly to your doctor. Because of the nature of coronavirus, no hospital can let people in off the street."

Coronoavirus has erected a major obstacle for Floridians: State law requires two in-person witnesses when a will or other documents are signed. Quarantines and social-distancing rules make it difficult to round up witnesses. Florida has been slow to adopt electronic and remote signing laws approved by other states.

"For wills, trusts, surrogacy forms and power of attorney, Florida's new statute allowing online execution will not be effective until July 1," Stone said. "Many states have changed, relaxed or suspended these laws to catch up to modern digital times but we are stuck with very strict rules in Florida."

The Florida Bar is hoping to introduce legislation that will retroactively validate any end-of-life documents completed without in-person witnesses during the coronavirus health emergency, Stone said.

"I was talking to an elderly couple, they both have medical problems, they are sequestered now and their deadline for an updated living will has been accelerated," said Stone, former president of the American College of Trust and Estate Counsel and an adjunct professor at the University of Miami School of Law. "You should still draw it up, name surrogates and sign it even without witnesses. Something is better than nothing. You can always revise it later."

Rosenberg is being flooded with requests for elder law guidance. Older adults and their relatives are struggling with urgent and awkward circumstances where they are confined to nursing homes or senior communities where no visitors are allowed. Some have dementia, Alzheimer's, memory loss or other geriatric issues.

"People are cut off and don't know where to turn," Rosenberg said. "'How do we care for our loved ones? How do I make sure my grandmother is getting services when I can't even visit her? How do I help her update her documents when they haven't been touched in years and she needs to designate new people? What if my father gets the virus? What if I die and there's nobody to look out for my parents?'"

Rosenberg talked to a woman in an Adult Living Facility whose husband had dementia and recently died. She has no immediate family nearby, friends can't visit and she has difficulty using a computer. Another woman came to South Florida to take care of her ill mother, got stranded here after the outbreak spread and now her brother is being uncooperative as they try to decide on a facility and end-of-life plan for their mother.

In another instance, he spoke to a woman who has been contemplating divorce for a long time "but she'd never pulled the trigger and now she's afraid of what will happen to her property if she gets infected," Rosenberg said. "She says, 'If I die, he gets all the money, runs off with another woman and nothing goes to my kids.' They also had a business together and need a business succession plan.

"In this area of law we are dealing with intricate personal issues. It's akin to social work. We're attorneys at law but also counselors at law. We're not suing people. We are trying to make sure people are properly cared for."

Just as you are preparing your home and adjusting your hygiene for coronavirus, so should you make choices about what happens if you become incapacitated or die, Rosenberg said. How do you want your funeral to be conducted? Cremation? Organ donation? Who gets the cherished heirlooms? According to Caring.com, only 37 percent of Americans have a will.

It's possible to make a will online. Consult websites such as Cake ("Navigating mortality? We'll be your guide"), Gentreo ("Life happens") and Willing ("Legal wills made easy"). But lawyers caution that do-it-yourself wills have their pitfalls, and are not necessarily easier and cheaper than consulting with an estate-planning specialist who knows state law.

Stone highly recommends reading the information offered by the American College of Trust and Estate Counsel on their website and watching its new video, "Getting Your Affairs in Order: Essential Legal Documents."

The Real Property, Probate, and Trust Law Section of the Florida Bar provides access to vital information on its website.

Rosenberg's firm, Kelley Kronenberg, has created a coronavirus text hotline and is posting coronavirus resources.

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Surge on wills: Fearing death by coronavirus, people ask lawyers to write their last wishes

Not a DIY Job: Why You Need an Attorney to Write a Will

Originally posted on https://lilaccitylaw.com/not-a-diy-job-why-you-need-an-attorney-to-write-a-will/

About 60% of Americans do not have a will or a living trust.

Granted, thinking and planning for the end of life is not something anyone would be enthusiastic about. So, while most people know they should, they wait until later to write a will.

Unfortunately, the decision at most times is put off until it is too late. In fact, 55% of Americans die without ever having had a will.

Why Do You Need a Will?

If you pass away or become incapacitated without writing an enforceable will, your loved ones might be tied in the legal system battling for your property long after you are gone.

It also means that how you want your property divided or your remains disposed of is left in the hands of other people.

To avoid this, it is best to draw up a will as early on as possible and revisit it as necessary.

DIY vs. Legal Expert to Write a Will

First things first; do you need to pay a lawyer to draw up your will, or can you DIY?

The internet is awash with how to do wills, complete with templates, and so on. So yes, it is possible to do your own will. The most important question is this: should you?

And if you do, will it be valid and enforceable in a court of law? Hiring a lawyer ensures that what you want is captured accurately because you will not be there to speak for yourself.

Here are three top reasons why you should let your attorney oversee this process.

1. Will vs. Estate Planning

A will is easy to DIY. However, hiring an estate planning lawyer to advise and oversee your estate planning is indispensable.

An estate plan is a detailed document that prepares for your death or disability.

This document will encompass your will, healthcare power of attorney document, financial power of attorney, and disposal of your final remains, among other things.

2. Legal Terms Can Be Your Undoing

You want your will to be interpreted exactly as you thought it out in your head. However, the words and phrasing you use can later be misinterpreted—intentionally or unintentionally.

Further, the various governing bodies and state regulations are fluid and are not easy to understand and keep up with.

However, this is an attorney’s job, so they are well-versed with phrasing, legal terms, and new regulations. When you bring a lawyer on board to handle your will, you are giving yourself the best chances of your will being enforced the way you want it.

3. Objectivity

A lawyer functions as a neutral party when drawing up a will. It is not uncommon for people to rush into doing a will after major fallouts where the main aim is to disinherit someone.

In such cases, your attorney can be objective and advise on this.

They are also able to look into the future outcomes of the decisions you make now. For example, an attorney can advise how to hold money or place it in a trust until the beneficiaries fulfill specific requirements.

They can also advise on who the executors should be so that, again, your wishes are honored after your passing.

The Verdict

All in all, you want not only to have your last wishes fulfilled, but you also want your family to have a sense of normalcy as soon as possible after your passing. When you write a will, this is achievable.

Would you like to talk to someone about drafting or amending an existing will? Contact us, and we will be happy to hold your hand through the process.

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Not a DIY Job: Why You Need an Attorney to Write a Will

Last will and testament can't be challenged until probate commences

Question: My father's last will and testament, signed in 2002, split everything equally between my sister and me. This is what Dad always told us he wanted. Since then, he has developed frontal lobe dementia and is living with my sister. My aunt recently told me my dad just signed a new will, and she heard my sister boasting she is getting everything under the new will and I am cut out. I think she's taken advantage of Dad. Can I do something to challenge the will now, before he passes on? He's 84.

Answer: I am so sorry you are in this situation. I understand your concern.

You might ultimately have grounds to challenge his last will and testament, perhaps on the basis of undue influence or lack of capacity. However, this can't be done ahead of time. You will have to wait until your father (the testator) passes away. Once his will is submitted to the probate court, you will have a limited period of time to challenge it. Until then, you have no legal recourse for demonstrating that the will is invalid. When the time comes, you will need to retain a probate litigation lawyer to handle the case.

For now, my suggestion is that you document everything — phone calls, paperwork, etc. — to fortify any future case. Also, because it sounds like your father may be the victim of elder financial abuse, I suggest that you contact the Florida Elder Abuse hotline, 800-96-ABUSE (800-962-2873).You could also consider filing a petition for guardianship. If a guardian is appointed, he/she will be able to monitor the situation and gather any evidence that your father has been the subject of undue influence or fraud, evidence that will be valuable once the probate is under way.

Joseph Karp, a member of the Florida and New York Bars, is a Nationally and Florida Bar Certified Elder Law Attorney and founder of The Karp Law Firm, located in Palm Beach and St. Lucie counties. The firm assists clients with wills, trusts, Medicaid and VA benefits planning, asset preservation, probate/trust administration and estate litigation.

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Last will and testament can't be challenged until probate commences