How to Protect Digital Property

When people built wealth, assets were usually tangible: real estate, investments, cash, or jewelry. However, the last year has seen a huge jump in digital assets, which includes cryptocurrency and NFTs (Non-Fungible Tokens). Combine this growing asset class with the coming biggest wealth transfer in history, says the article “What happens to your NFTs and crypto assets after you die?” from Tech Crunch, and the problems of inheriting assets will take more than a complete search of the family attic.

One survey found only one in four consumers have someone in their life who knows the details of their digital assets, from the location of the online accounts to passwords. However, digital assets that require two factor authentication or biometrics to gain access may make even this information useless.

There are many reports about people who purchased digital assets like Bitcoin and then lost their passwords or threw away their computers. More than $250 million in client assets vanished when a cryptocurrency exchange founder died and private keys to these accounts could not be found.

Digital assets need to be a part of anyone’s estate plan. A last will and testament is used to dictate how assets are to be distributed. If there is no will, the state’s estate law will distribute assets. A complete list of accounts and assets should not be part of a will, since it becomes a public document when it goes through probate. However, a complete list of assets and accounts needs to be prepared and shared with a trusted person.

Even traditional assets, like bank accounts and investment accounts, are lost when no one knows of their existence. If a family or executor doesn’t know about accounts, and if there are no paper statements mailed to the decedent’s home, it’s not likely that the assets will be found.

Things get more complicated with digital assets. By their nature, digital assets are decentralized.  This is part of their attraction for many people. Knowing that the accounts or digital property exists is only part one. Knowing how to access them after death is difficult. Account names, private keys to digital assets and passwords need to be gathered and protected. Directives or directions for what you want to happen to the accounts after you die need to be created, but not every platform has policies to do this.

Password sharing is explicitly prohibited by most website and app owners. Privacy laws also prohibit using someone else’s password, which is technically “account holder impersonation.” Digital accounts that require two factor authentication or use biometrics, like facial recognition, make it impossible for an executor to gain access to the data.

Some platforms have created a means of identifying a person who may be in charge of your digital assets, including Facebook and more recently, LinkedIn. Some exchanges, like Ethereum, have procedures for death-management. Some will require a copy of the will as part of their process to release funds to an estate, so you will need to name the asset (although not the account number).

A digital wallet can be used to store access information for digital assets, if the family is reasonably comfortable using one. A complete list of assets should include tangible and digital assets. It needs to be updated annually or whenever you add new assets.

Consult a qualified estate planning attorney about how to protect your digital assets. They will be able to help you create a plan to assure your assets are protected properly.

Reference: Tech Crunch (April 5, 2021) “What happens to your NFTs and crypto assets after you die?”

‘Siegfried & Roy’ Star Roy Horn Named Siegfried His Executor

Legal documents revealed that performer Roy Horn’s last will and testament was filed in the Las Vegas courts on June 18, 2020, according to the article “’Siegfried & Roy’ Star Roy Horn’s Will Names Siegfried As Executor Of His Multi-Million Dollar Estate” as reported in The Blast. The document gave Siegfried Fischbacher the power to administer and distribute Horn’s assets after his death. If Siegfried was not able to perform the tasks, Roy Horn had named Lynette G. Chappell as the alternate executor.

Lynette G. Chappell was the performer’s longtime assistant.

Roy Horn died at age 75 after contracting COVID-19. Siegfried had told an interviewer that he drove to the hospital with Lynette and was able to see his life partner one more time before he died.

Roy Horn also named Siegfried’s longtime lawyer, John Moran Jr., to be co-executor of his estate with Chappell, if Siegfried was unable or unwilling to be his executor.

The will, which was signed in 2016, also included directions that Roy Horn’s multi-million estate be distributed to beneficiaries, which were named in a private trust. The trust was not attached to the legal filing that included the last will and testament, so the names of his beneficiaries will remain private. The will does state that Roy Horn is unmarried and has no children. He was survived only by his brother, Werner Horn.

Siegfried was given broad powers to manage all of the financial issues of the estate, including paying for the funeral and any expenses regarding handling Horn’s remains. As the executor, the personal representative is empowered to perform any act necessary to administer the estate and any trust established under the will. The will also permits Siegfried to hold, retain, invest, sell or manage any real or personal property, distribute assets of the estate without requiring pro-rata distribution of specific assets, employ attorneys, accountants, custodians, and any other agents or assistants as the executor deems necessary and to pay them and pay for their expenses from income or principal.

According to reports, Siegfried and Roy had a combined estimated net worth of more than $100 million, after they had signed several highly lucrative contracts to perform their award-winning show on the Las Vegas Strip.

The duo performed on the Las Vegas Strip for decades, until 2003, when their show abruptly ended when Roy was attacked on stage by a white tiger. He was dragged off the stage by the tiger and suffered severe injuries, including a severed spine, a stroke and massive blood loss.

Siegfried revealed in a recent interview with a German publication that Roy Horn had been cremated and his ashes are being kept in a chapel in their Las Vegas compound.

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Reference: The Blast (June 27, 2020) “’Siegfried & Roy’ Star Roy Horn’s Will Names Siegfried As Executor Of His Multi-Million Dollar Estate”

When Does the Fiduciary Duty Granted by a Power of Attorney Begin?

A recent case examined the issue of when the fiduciary duty begins for an agent who has been given Power of Attorney, as reported by the Chicago Daily Law Bulletin in the article “Presumed power of attorney fraud is main factor in joint-account fight.”

Soon after moving to Illinois from Florida to live with his eldest son, a man and that son opened multiple bank accounts, purchased certificates of deposit (CDs) from a bank where the son’s wife worked and transferred more than $60,000 from two of the man’s Florida bank accounts to Illinois banks. Soon after the man moved, his eldest son deposited more than $300,000 from the sale of his father’s Florida condominium into one of the father’s Illinois bank accounts.

The eldest son then withdrew money from the father’s accounts to pay for home improvement costs and other personal expenses. After the father died, the eldest son’s two brothers sued their older brother, accusing him of initiating numerous transfers of money that were not in their father’s or their best interests, and of exerting undue influence on their father, by convincing him to change his will after he moved in with the oldest brother.

The trial court ordered the older brother to repay more than $900,000 back to the estate, including almost $300,000 in prejudgment interest, and voided the revised estate planning documents that the older brother had his father sign. That included a revised will, trust and power of attorney that favored the older brother.

Once you are appointed as a power of attorney, you become a fiduciary—that’s how most state laws work. That means you must act first in the interest of the person who has appointed you. The law states that an agent owes a fiduciary duty to the principal. Period. Any transactions that favor the agent over the principal (or their estate) are deemed fraudulent, unless the agent is able to disprove the fraud with clear and convincing evidence that his or her actions were undertaken in good faith and did not betray the confidence and trust placed in the agent. If the agent can meet this burden, the challenged transaction may be upheld. But if it doesn’t, then the transaction is not valid.

Some of the facts the court look at when making this determination are: did the fiduciary make a full disclosure to the principal of key information, did the fiduciary pay the fair market value for the transfer and did the principal have competent and independent advice.

In this case, the trial judge found that the multiple transfers into the Illinois banks and the gift of $130,000 from the principal to the oldest brother occurred during the existence of the POA relationship. The oldest brother clearly benefitted from these transfers, which activated the presumption of fraud.

The trial court’s decision was appealed by the older brother, who along with his two younger brothers brought motions for summary judgment, that is, for the appeals court to disregard the decision of the trial court. However, the appeals court agreed with the trial judge that the older brother failed to prove that the transfers were in good faith.

The appeals court makes it clear: the power of attorney fiduciary relationship begins when the power of attorney agent signs the document and the agent has a legal responsibility to put the interests of the principal first.

Reference: Chicago Daily Law Bulletin (April 23, 2020) “Presumed power of attorney fraud is main factor in joint-account fight”