My simplest Last Will and Testament is currently about 6 pages long. My next most complicated Last Will and Testament comes in at about 20 pages. Admittedly, this can be a lot of pages for a client to read through. And a large portion of the Last Will is filled with legal terms and phrases that do not make for the best leisure reading. So why does your “simple Last Will” have to be so long and complex? I see two major reasons why this is the case.

Firstly, when I draft a Last Will for a Client, I am thinking about what will happen to the estate and estate beneficiaries if the unexpected happens. If we could all be certain that our estates will be administered exactly according to plan, perhaps the Last Will could be simpler and shorter.

But life does not always go as we think it is going to go. Lots of events could occur that change the effectiveness of a Last Will. An estate beneficiary could unexpectedly pass away or run into issues of financial mismanagement, divorce, disability, or drug addiction. Particular assets could be sold off or lost. Nominated Executors can pass away or find themselves not approved by the Probate Court after your lifetime. Since some of these issues can reasonably be anticipated and planned for, you will find that even my simple Last Will contains many provisions and clauses for dealing with these kinds of events.

My goal for a Client’s Last Will is to take care of what will happen if everything goes according to plan. But my goal is to also take care to obtain a good result for the Client’s family if things do not go exactly as planned. I once had a Client come to me for a “simple Last Will”. The Client explained to me that he only had one beneficiary and it should all be quite easy for the Will to deal with his estate. I asked a single question that the Client had obviously not thought of. What should happen if your single beneficiary dies before you?

Secondly, Last Wills are full of complex legal language because the Last Will has to eventually speak to many different people who are charged with carrying out your intent. This includes estate attorneys, probate judges, and probate court staff. These people all speak in a legal language that has been created over a long period of time. It is vital that your Last Will communicate your intent as clearly and concisely as possible because after your lifetime you are not going to be available to explain what you meant.

One of the most difficult Last Wills I was involved in administering was a Last Will that was entirely written from scratch by the Decedent. The Will was full of directions by the Decedent to do things that were not necessarily possible to do as well as neglected to use the ordinary legal terms people in this field expect to see in a Last Will. Fortunately the estate beneficiaries were able to agree on what the Decedent meant, so that the Probate Court did not have to be asked to determine this. The Decedent certainly saved money by writing his own Last Will, but the complexity and extra steps added to the estate administration more than offset the initial savings.

Last Wills can be complex documents containing a lot of legal language and phrasing. A Client may wonder whether it is all necessary. In my practice, I try to prepare Last Wills that account for life events that we may not expect, as well as Last Wills that speak properly to the people who will be called upon to carry out your intent. These are the reasons why Last Wills can contain some complexity that you may not have expected.

Not only are the statutory fees relatively high compared to a trust administration, a probate case doesn’t cover things such as changing ownership of retirement accounts, managing distributions from life insurance policies, etc. And the probate process in South Carolina usually takes 9-12 months in most Probate courts (and that is if the estate is fairly simple). And one of the things that most people probably don’t even realize is that when a probate action is filed, the deceased person’s entire estate is now open to public disclosure. All court filed documents are readily accessible by anyone who searches.

2. Creditor Protection for Beneficiaries. In a properly drafted revocable trust, the Grantor can have provisions protecting their loved ones from future divorcing spouses, lawsuits, debts from a failed business venture, bankruptcy, or other types of creditors. The way in which we do this for most of our clients is either by setting up a QTIP trust for a surviving spouse or a continuing trust with special creditor protection provisions for other types of beneficiaries, such as children.

Marital trusts such as QTIP trusts can protect the deceased spouse’s property from later creditors of a surviving spouse (such as a new spouse who later divorces the surviving spouse, a lawsuit litigant, a bankruptcy trustee or other creditor). The main reason is because this was the deceased spouse’s property that is left for the benefit of the surviving spouse during the lifetime of the surviving spouse. The best result would be for the surviving spouse to resign as Trustee of either of these types of trusts in the face of a creditor threat and appoint an independent Trustee to take their place. These types of Trusts for a surviving spouse also prevent the surviving spouse from changing the later beneficiaries of the deceased spouse’s property.

For continuing trusts for children, each trust can be set up so that each child has no demand right against the Trustee. The second component to the creditor protection is who the Trustee is. Obviously, an Independent Trustee will have much greater power to protect the assets inside the trust for the beneficiary after the Grantor dies, however there are several options to allow greater flexibility and control for the beneficiary of a continuing trust.

One such option is to allow the beneficiary to serve as a Co-Trustee with the Independent Trustee. Another is to allow the beneficiary to act as a Management Trustee and have an Independent Trustee act as Distribution Trustee. A third option is to allow the beneficiary to serve as his or her own Trustee at a stated age, with the proviso that if a creditor threat ever materialized, the Beneficiary Trustee should either resign and appoint an Independent Trustee to serve or they should step down as Distribution Trustee and only serve as the Management Trustee of the assets (and appoint an Independent Distribution Trustee).

The trust can also be crafted with cascading provisions to benefit grandchildren or other beneficiaries when the primary beneficiary of a continuing trust passes away. Additionally, the beneficiary can be given a limited power of appointment, a general power of appointment or no power of appointment at all. This not only allows the Grantor to control who the remainder beneficiaries of the assets are but also can potentially be used for estate tax planning purposes (under current law).

3. Contingent Distribution Planning for Your Estate. Beneficiary designation forms on bank accounts, brokerage accounts or retirement accounts can often not fully account for your alternate distribution desires.

For example, where you have a large retirement account and you’ve listed your spouse as the primary beneficiary and your children as contingent beneficiaries, there may be an unintended consequence if one of your children should predecease you, become incapacitated, or later become a special-needs beneficiary.

Another unintended consequence of children inheriting as a contingent beneficiary on a retirement account is that there’s no protection from a future divorce that child may have, a bankruptcy, lawsuit or other creditor problem. In fact, the U.S. Supreme Court decided in 2014 in the Clark case that the beneficiary of an IRA that was stretched-out over the beneficiary’s life expectancy for income tax protection was not protected from that beneficiary’s creditors. The bankruptcy creditors were handed that inherited IRA in the Clark case.

The better way to protect the beneficiary of a large retirement account is to create a trust that ensures that the beneficiary will be able to take advantage of the extended period of time for withdrawal of retirement account while potentially protecting the principal of the account from the beneficiary’s divorcing spouse, lawsuits, a future bankruptcy or other types of creditors. It is also better contingency planning because if a  beneficiary of the trust passes away prematurely and there is a remaining balance in the retirement account for that beneficiary, it can be inherited by a contingent beneficiary named in the trust document.

4. Private Incapacity Planning for the Trust Grantor. I think it’s safe to say that in most cases, a person would not want their family to have to drag them down to the courthouse for a conservatorship hearing to determine their capacity to act in their own best financial interests should that issue ever arise. If a client has no estate plan in place, that’s exactly what their family and the state of South Carolina will need to do.

Revocable trusts can be designed with specific provisions to determine privately whether or not the Grantor of the trust still has the requisite capacity to act in their own best financial interest. Some common provisions for this private determination of incapacity are (a) determination by an attending physician, (b) determination by two independent license physicians or (c) determination of capacity by an incapacity panel of the client’s selection (by majority or unanimous vote).

5. Planning for a Percentage (%) of the Estate to Go to Specific People. This allows for precise distribution of the trust estate when it’s unclear what exactly will be owned in the trust at the time of the death of the Grantor later on down the road. For example, if you wanted to leave 50% of your estate to your grandchildren and it’s possible your children may have additional children in the future, a class gift could be given to all of the members of the “class” of your grandchildren. The gift could be made to a “common trust” for the benefit of those grandchildren until the youngest grandchild reaches a certain age or it could be broken apart into separate shares for each grandchild then alive at the time of the your death.

Because we don’t know what types of assets or the values of those assets down the road when the you pass away, it’s best to use percentages in a trust to accommodate your wishes. This would be next to impossible to do on each and every asset with any real predictability (since you would likely need to regularly update your beneficiary statements at each financial institution if you were to leave one asset to one child and another asset to the other child). Additionally, if you ever became incapacitated, you could not update your bank, brokerage, real estate, life insurance or retirement account beneficiaries to accommodate the fluctuations or changes in value of each asset in your desire to be fair.

6. Planning for Unknown Circumstances that May Affect Your Beneficiaries in the Future. Special provisions such as the use of a Trust Protector or including Special Needs Trust provisions for a Trustee to utilize later may well significantly help beneficiaries in the future if something unexpected happens to the beneficiary or in the estate or gift tax laws. Or what if you ran down on assets owning only a home and a little in retirement and bank assets. If incapacitated, there could be little that could be done to plan for government benefits in advance without spending the entire estate down to qualify. Yet if the right trust provisions appear in the trust and Power of Attorney document, the greater the flexibility to help an incapacitated Grantor resulting often in a much greater quality of life while protecting your estate plan.

7. Prevention of a Young or Immature Beneficiary from Inheriting/Having Control Too Soon. We’ve all seen cases where somebody that was too young or immature inherited a lot of money and either blew it all in a short period of time or hurt themselves with the money with drugs and alcohol. Making sure there are specific safeguards to protect a young beneficiary are critical to the estate planning process.

One way to ensure this happens is to have a revocable trust plan in place that has provisions to protect a beneficiary not only from outside creditor threats (as mentioned in number two above) but also to protect them from themselves by having a Trustee other than the beneficiary in place at least until a stated age. Many of my clients typically choose between 25 and 35 years of age, but on occasion some pick a later age or they do not allow the beneficiary to serve as a Trustee or they only allow them to serve as a Co-Trustee at a stated age.

To schedule a private planning strategy meeting or to discuss updating your existing estate plan, contact Upstate Estate Law at (864) 527-3144.

There are administrative tasks and expenses that revolve around trust administration that families and Trustees need to understand. The first thing that should happen during trust administration, is that an “administrative” trust should be set up with its own tax identification number. The trust, depending on how the estate planning has been set up, may pay for funeral expenses and possibly last illness expenses of the deceased, as well as ongoing bills and attorney or accountant fees. With the new tax identification number the successor Trustee can set up a new bank account in the name of the “administrative” trust to track all income and expenses. Meticulous record keeping is essential when administering a trust.

There are many other things that can happen in a trust administration.

Some of these things could include:

1. Notifying trust beneficiaries of the death of the Grantor and of the trust’s existence;

2. Upon distribution from the administrative trust, obtaining a tax identification number for any continuing sub-trusts;

3. Filing a final income tax return for the decedent;

4. Filing a trust income tax return each year for as long as the trust continues;

5. Determining if an estate tax is due;

6. Publishing a legal notice of the death of the Grantor of the trust;

7. Marshalling all of the trust assets, investing them safely, protecting them, and distributing them as appropriate;

8. Filing the decedent’s Will with the Probate Court;

9. Opening a bank account for the trust;

10. Paying last expenses of the decedent and valid debts;

11. Collecting life insurance proceeds;

12. Determining if a probate is necessary for any assets;

13. Notifying persons or institutions that they are the nominated Successor Trustee;

14. Notifying government agencies of the death;

15. Determining the status of all the decedent’s retirement accounts. Determine if the trust or sub-trust is a beneficiary. Take steps to take any required minimum distribution and maintain eligibility for stretch payouts;

16. Obtaining valuations on all property as of the date of death of the decedent;

17. Paying off valid debts of the Grantor;

18. Paying ongoing expenses of trust administration such as legal and CPA expenses, etc.;

19. Liquidating assets where necessary to pay off the debts of the Grantor;

20. Distributing the trust assets to the beneficiaries after all of the above has been completed.

The above list is not exhaustive. There can be many other tasks to accomplish depending on the particular situation. The above is just a list of common tasks that a Trustee might have to do. Every trust is unique. The terms, the beneficiaries, and the assets of the Grantor of that trust are going to be a unique mix that bring their own challenges. Therefore, it is important to hire experienced trust counsel to help with the administration of the trust. Missteps can be costly and result in personal liability to the Successor Trustee. If you experience a death in the family and need help, please don’t hesitate to call Upstate Estate Law, P.C. The Firm’s phone number is (864) 527-3144.

So how does this effect you? 

Put simply, this will only effect you if the total value of your estate exceeds the estate tax exemption amount. The vast majority of estates do not approach this level, so estate tax planning does not have to be a concern for most people. Which is nice, because now much more focus in estate planning can be on other issues, such as asset protection, income tax, and taking care of your family, over having to plan around the estate tax, which in its day was quite onerous.

What if your estate is over the estate tax exemption amount?

Then we should talk about an estate tax plan. If your estate is over the estate tax exemption amount, then your estate will be required to pay a marginal estate tax rate of 40%. This can be avoided through advanced estate planning and protection planning. Sometimes just an irrevocable life insurance trust is enough to adequately deal with estate tax concerns.

The new 2019 Estate Tax Rate will be effective for the estates of decedents who passed away after December 31, 2018.

WHAT IS THE FEDERAL ESTATE TAX?

The federal estate tax is a tax imposed by the IRS on property that is transferred from an estate after a decedent’s death. The estate tax is not imposed unless the total value of a net taxable estate exceeds the federal estate tax exemption amount. The total net taxable value of an estate is found by taking the fair market value of the decedent’s assets at the time of death (not when they were purchased) less allowable expenses and deductions.

Portability: What happens to the Federal Estate Tax if you are married?

The “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010” allows the executor, trustee, or personal representative of an estate to elect to transfer any amounts of the estate tax exclusion that were not used for the decedent’s estate, to the decedent’s surviving spouse.

This is called portability. In order to use portability, the surviving spouse must file IRS form 706 for the deceased spouse’s estate and elect portability. The surviving spouse may then apply the transferred estate tax exclusion amount received from the estate of their deceased spouse,  to offset any tax liability stemming from any future transfers upon death or lifetime gifts.

What the new Federal Estate Tax Exemption Means for Estate Planning?

In the past when estate tax exemption amounts were lower, even basic estate planning had to include some form of tax planning. With the increase in the Federal Estate Tax rate in 2012, and the larger increase in 2018 and subsequent years, most families are not required to pay an estate tax.

In South Carolina estate planning is still highly recommended for anyone who 1) owns real estate, 2) needs to plan for potential health issues or possible incapacity, 3) wishes to avoid probate, 4) wants to direct who their assets should go to, or 5) those with minor or disabled children or estate beneficiaries or financially irresponsible estate beneficiaries.

Does South Carolina have an Estate Tax?

Luckily, residents of South Carolina do not need to worry about a state estate tax. South Carolina does not collect an estate tax.

What About the Gift Tax?

The annual exclusion for federal gift tax purposes will stay at $15,000 in 2019. I’d bet it will stay there for a few more years. This means that you can gift $15,000 per person to as many people as you want throughout the year with no federal gift tax consequences in 2019; and if you elect to split the gifts with your spouse, that total becomes $30,000 per person. Again, South Carolina does not impose a separate gift tax.

To further try to combat this issue, FINRA has issued two new rules to help investment brokers or advisors to protect seniors’ accounts from this exploitation. The rules went into effect in February 2018. They apply when opening a brokerage account or updating information for an existing account.

First, at the time of account opening the broker or investment advisor must ask the investor for the name of a trusted contact person. This is someone the broker can contact if there are questions about the account. The trusted contact is intended to be a resource for the broker to address possible financial exploitation and to obtain the customer’s current contact information and health status or learn about any legal guardian, executor, trustee or holder of a power of attorney.

The second rule allows a broker to place a temporary hold on disbursements if those disbursements seem suspicious. This rule applies to accounts belonging to investors age 65 and older or investors with mental or physical impairments that the broker reasonably believes make it difficult for the investor to protect his or her own financial interests. Before disbursing the funds, the brokerage firm will be able to investigate the disbursement by reaching out to the investor, the trusted contact, or law enforcement.

Prior to these rules, privacy issues prevented contact with family members when suspicious activity was detected. Also, under previous FINRA rules brokerage firms risked liability for halting transactions thought to be suspicious. These new rules are intended to combat these issues.

Read about the new rules here.

Frequently Asked Questions about the new rules here.

There are a number of planning techniques that can be utilized in order to prevent this disqualification. They include converting counted resources into exempt resources, such as using the inheritance to fund the purchase of a home, car, a pre-need funeral contract, or a qualified-Medicaid annuity for the benefit of the disabled Spouse. Another technique is the establishment of a third-party Special Needs Trust.

A third-party special needs trust is a specialized trust established for the benefit of a disabled third party. In a third-party special needs trust, the trust is funded using assets belonging to somebody other than the beneficiary. A third-party special needs trust will benefit the disabled beneficiary during the beneficiary’s lifetime, and thereafter the trust assets can be distributed as instructed by the original creator of the trust. There is no requirement for a Medicaid payback provision to be included in a third-party special needs trust. The trust is used for special needs during the disabled beneficiary’s lifetime, and thereafter can be distributed to any person or persons selected by the trust creator.

The estate planner must be careful in how a third-party special needs trust is created for the benefit of a Spouse. A third-party special needs trust cannot legally be created for the benefit of a Spouse in a standalone trust document.  The trust must be a testamentary trust established in a Last Will. There is a federal law requiring this, arising from what are broadly known as the Medicaid trust rules. See 42 U.S.C. Section 1382b(e)(2), which states that “[f]or purposes of this subsection, an individual shall be considered to have established a trust if any assets of the individual (or of the individual’s spouse) are transferred to the trust other than by will.” (Emphasis added.)

For example, suppose Wife sets up a non-testamentary special needs trust for the benefit of her disabled Husband, using Wife’s own assets. Under the rules, it will be considered that the disabled Husband set up the trust himself and that the trust is available to him. This can cause inadvertent benefits disqualification. In this day and age when lots of estate planners believe that the revocable trust should be the primary estate planning tool, you need to be careful if you are setting up a third party special needs trust for the benefit of a surviving spouse. Revocable trusts can still be used, but thought should be given to a possible “pour over” back to a testamentary special needs trust if Medicaid long term care benefits may be sought in the future for a surviving spouse.

Today, estate planners have to have a broad background in the law to be able to recognize the myriad number of issues that can arise. The practitioner needs to be able to recognize the complexity of elder issues, and the large array of laws that can come into play. Estate planners must be able to recognize situations that implicate these specialized areas of the law in order to provide the best advice to their clients. At Upstate Estate and Elder Law, PA, we have taken the time and put resources into making sure we understand these issues so that we can provide sound advice and representation to our clients.

Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) says that assets held in trust for a disabled individual’s benefit will not be counted as a resource for Medicaid-eligibility purposes, as long as by the trust’s terms the State will be paid back after the individual’s lifetime for Medicaid benefits paid for the individual. This statutory section brought into existence what is now called the “first party special needs trust.” Unfortunately though, the statute limited who may establish such a special needs trust by directing that the trust must be established “by a parent, grandparent, legal guardian of the individual, or a court.”

Absent from this list is the individual him/herself. There was not really any justification to not allow an adult competent but disabled individual to set up their own special needs trust. If the individual’s parents and grandparents were not available, and there was no legal guardian appointed, the adult competent but disabled individual had no other option but to begin a Court proceeding and request a Court’s permission to establish a special needs trust for the individual’s benefit. This was a waste of precious time and resources that could be easily fixed via an amendment. And after 23 years it has finally been fixed.

Beginning December 13, 2016, an individual may now establish their own first party special needs trust. HR 34 has amended Section 1917(d)(4)(A) to now state that a special needs trust must be established by “the individual, a parent, grandparent, legal guardian of the individual, or a court.”

Under the ABLE Act, the individual states set up the savings program for people with disabilities. This savings program is similar to how 529 college savings accounts work. With certain restrictions, an account can be established for use by a beneficiary with special needs. On April 1, 2016, South Carolina Governor Nikki Haley signed SC’s ABLE Act-enacting legislation into law.

Setting up an ABLE account:

An ABLE account can be set up by a parent, legal guardian, or agent acting under a Power of Attorney.

Qualification for an ABLE account:

To qualify to set up an ABLE account, the beneficiary must either: 1) be eligible for SSI based on blindness or disability which began before age 26; or, 2) be eligible for Disability Insurance Benefits, Childhood Disability Benefits, or Disabled Widow’s/Widower’s Benefits based on blindness or disability that began before age 26; or 3) a parent or guardian must certify that the disabled person has a medically determinable impairment or blindness which began before age 26.

Benefits and Limits of the ABLE Act:

There are limits to the amount of savings that can be built up in an ABLE account. The annual contribution amount per account cannot exceed the annual gift-tax exclusion amount, which is currently set at $14,000. Also, ABLE accounts can only accumulate aggregate contributions up to South Carolina’s limit on 529 plans, which is currently $370,000.00.

The real benefit of the account for the special needs person is that the amount of money in the ABLE account is not countable for Medicaid purposes at all, and the first $100,000 in the ABLE account is not countable for SSI purposes.

For example, if a person has $100,000.00 in their ABLE account and no other countable assets, they can continue to receive SSI and Medicaid. If a person has $101,000.00 in their ABLE account, and over $1,500.00 in other countable assets, they will become ineligible for SSI, because the $1,000.00 counted from the ABLE account plus $1,500.00 in other countable assets puts the person over the $2,000.00 resource limit for SSI. But the Medicaid benefits can continue because countable assets for Medicaid do not include any amount in the ABLE account. If a person has greater than 102,000.00 in the ABLE account and no other countable assets, again, SSI would stop but Medicaid would continue. These rules are complex, if you have a question, you should review them with an elder law attorney.

Social security has also stated that distributions from an ABLE account will not be included in the beneficiary’s income for SSI qualification purposes, regardless of whether the distribution is qualified or un-qualified, and whether the distribution is for housing or non-housing expense.

Payment After Death of Account Beneficiary

The ABLE Account is a “Medicaid Payback” account. This means that upon the death of the account beneficiary, Medicaid payments given to a beneficiary after the establishment of the ABLE account have to be reimbursed with any money remaining in the ABLE account. If there is no required reimbursement, or if after reimbursement there are funds remaining, the account may be paid to the account beneficiary’s named beneficiary or to the estate.

Qualified Distributions

Withdrawals from ABLE accounts are tax free as long as the withdrawal is for qualified disability expenses. Qualified disability expenses include expenses for: education, housing, transportation, employment training, assisstive technology, health and wellness, preventive medical care, financial management, legal fees, funeral expenses, and basic living expenses.

Tax Benefits

Taxation of ABLE accounts is similar to that of 529 accounts. Qualified distributions from the account are not taxable to either the account contributor or the beneficiary.

Income earned by the ABLE account is not taxable to the account contributor or to the beneficiary. However, contributions are not tax-deductible and must be made from post-tax income.

Assets in an ABLE account can be rolled over to another ABLE account for the benefit of another qualified person who is a brother, sister, stepbrother or stepsister of the initial beneficiary.

Future Changes

There are bills pending in Congress to raise the age of onset of disability from 26 to 46, as well as a bill to allow employed account beneficiaries to save additional amounts above the gift tax annual exclusion amount. Stay tuned …

In Private Letter Ruling 201612001 (released March 18, 2016), the IRS was asked to provide an opinion on the following situation: Husband died owning an IRA account. His spouse survived him. The primary named beneficiary (not the spouse) died before Husband. There was no contingent beneficiary named. As a result the Husband’s estate became the beneficiary of the retirement account. The Surviving Spouse then requested the IRS’s opinion on whether she could treat the IRA account as her own, thus potentially delaying the payment of income taxes on the account. In this case, the IRS stated that because the Surviving Spouse was both the executor and the sole heir of the estate, she could treat the IRA account as her own.

You might be asking then what is the problem? The IRS said the Surviving Spouse can treat the account as her own and delay the payment of income taxes. Let’s assume for a moment that it was Husband’s intent for his Surviving Spouse to receive that account if his primary beneficiary died before him. The problem is that it is expensive to obtain a Private Letter Ruling from the IRS. There are IRS filing fees as well as attorney’s fees that will be incurred. This is not a good use for estate funds, when it could have easily been avoided.

It also takes time to get the ruling. In this case, the request was made about 11 months before the decision was rendered. Perhaps it also took a few months to prepare the request, and another few months on top of that to even realize that a Private Letter Ruling would be necessary. Lastly, an IRS Private Letter Ruling is not a precedent for any other taxpayer. Another taxpayer could not rely on this decision if they are in the same situation.

Consider though if it was not Husband’s intent for his Surviving Spouse to receive the IRA, then his intent was frustrated by not having named a contingent beneficiary. When you undertake estate planning, it is important to make sure there are no potential issues with your beneficiary designation forms, so get your attorney’s input when naming your beneficiaries. We have the experience to know what can possibly go wrong.

The Uniform Fiduciary Access to Digital Assets Act allows personal representatives, executors, guardians/conservators, and persons acting under a power of attorney to have access to digital accounts of a decedent or incapacitated person. The law is intended to make it easier to gather the digital assets and get access to them to administer a decedent’s or incapacitated person’s estate. Nowadays, an important part of estate planning will be focused on generating a list of digital assets and providing the ability for our designated agents to obtain access to the digital assets when necessary. Other bills are pending around the country, so it is expected that this uniform law will be adopted somewhat rapidly.

South Carolina has a bill currently pending in the state legislature. You can find it here. It will be interesting to see if this bill can move forward, particularly when lots of attention seems to be on the highway bill and gas tax proposal. I am unsure however how effective this bill will be. The various terms of services agreements users accept when using online services can potentially take the effectiveness out of this law. This will be a fascinating area of estate planning and probate to watch in the coming years.

Check out this prior post for some examples of why this bill can be so important.