Estate Planning

Cover Your Digital Assets

A digital asset consent for release is now a standard part of an estate planning package with Clayton and Clayton, PLLC, but what is it?


Recently, North Carolina adopted the revised Uniform Fiduciary Access to Digital Assets Act, or UFADAA. While still new, adopting this statute has important implications with regard to estate planning.


Have you stopped to consider what happens to your digital assets when you die? Do you have photos stored on the cloud? What about digital music, videos, or books? What about access to email accounts, bank accounts, online medical records, web hosting accounts, social networking, and social media accounts?


The Internet is changing on a daily basis, and with those changes, it becomes a more and more ever-present factor in our lives. We took a vacation recently to a remote area with no Internet access, and we quickly realized how much we depend on our digital assets such as photos, videos, email, and file sharing services once we couldn’t access them constantly – and let’s not even get started on the difficult process of explaining to our son why we couldn’t stream his favorite Daniel Tiger videos!


Typically, “custodians” control our digital assets. These custodians are typically the servers, hosts, and/or companies that manage the cloud – which means that access is usually terminated at the death of the user. Prior to the enactment of UFADAA, attorneys often suggested leaving a list of passwords for loved ones to access digital accounts at death or incompetency, but there is a possibility that this is in violation of the user agreements that we agree to when we create such accounts. Best practice now suggests that the best way to do this is to create a Digital Assets Consent for Release in conjunction with a list of all electronic assets and accounts so that your appointed fiduciary knows where to look, what accounts you have, and how to access them.


This is why we are excited that NC has adopted the uniform rules.  While our digital assets will still be subject to copyright laws and federal privacy laws, we can now appoint legal access to our accounts through a Digital Assets Consent for Release. What this does is allow the fiduciary, typically the executor of the estate, to legally step into the shoes of the decedent to access these documents. Not only does this make the probate process run smoothly, but it also – and more importantly to loved ones – allows access to these assets.


It’s also important to check with the individual custodians of your accounts to see whether they offer their own estate planning options that you can manage and evaluate now. One example is Facebook’s creation of a Legacy Contact – see more here: In circumstances such as those, the UFADAA will defer to the account holder’s choices – although it typically will override “click-through terms-of-service agreements” that conflict with otherwise express instructions made by the account holder.


While a Digital Assets Consent for Release is an important step, it’s best to use it in conjunction with appropriate language in your Last Will and Testament. This way, your appointed fiduciaries should be able to have access to such assets not only during a period of incompetency when you cannot access such records on your own, but also after death.


Curious how your digital assets will be maintained after your death? Don’t hesitate to reach out to us to talk about this some more.


And don’t forget, if you created estate planning documents with Clayton and Clayton recently, but wish to add a Digital Assets Consent for Release to your estate planning documents, we will make one for you free of charge.

LegalDoom: Pitfalls Of Using Online Will Templates

LegalDoom: Pitfalls Of Using Online Will Templates

In the days of one click online “prime” shopping, next day delivery services, “freaky fast” food delivery options, in-store pickup, and online will preparation options – it’s easy to wonder whether it’s worth the time to slow down and consult an attorney for your estate planning needs.

How does a Revocable Living Trust help me avoid probate?

One of the biggest misconceptions about Revocable Living Trusts is that they are only for the wealthy. However, even if you have only accumulated a moderate amount of wealth or assets, having a trust might be a useful tool to consider for your estate plan.


Probate is the court-supervised process of settling an estate after someone dies. It is a time-consuming process and can sometimes end up being costly. Additionally, it is completely public – anyone can see the distributions made and who they are made to.


A Revocable Living Trust, however, allows for greater privacy since any assets that were titled in the name of your trust during your lifetime will generally avoid the probate process and will not become part of the public record. At the same time, a Revocable Living Trust can be altered, revoked, or amended any time during the lifetime of the person who created it – without the consent of the trustee or others – allowing privacy at death and flexibility during life.


While it is important to fund the trust by adding your assets to it, it is also important to have a will that will work in conjunction with the trust. A carefully drafted will can allow for assets that were not in the trust at the time of your death to “pour over” into the trust during the probate process.


Revocable Living Trusts are useful tools, but it’s important to keep in mind that they are not a magic solution to all of your problems. Without further planning, most Revocable Living Trusts cannot help you avoid income taxes, avoid estate taxes, shield assets from your creditors, or help you qualify for Medicaid.  While options may be available such as a credit shelter trust to reduce the amount of estate taxes due for some people or a spendthrift trust to prevent a creditor from accessing some assets, these are issues that would need to be carefully addressed on a case-by-case basis.


Whether or not to create a Revocable Living Trust will vary from person to person based on their needs and estate planning goals. If you would like to talk about whether one will be beneficial to you, we recommend talking with an attorney or tax advisor. As always, don't hesitate to contact us if this is something you would like to discuss.

Planning For Incapacity

While it is never something we want to consider, planning for incapacity is an important part of making an estate plan. There are many methods and tools available to make sure that your wishes are respected and that the people you trust the most will be the ones making important decisions on your behalf.

Some useful tools to consider include:

  • Health Care Power of Attorney: A health care power of attorney becomes effective after a physician determines that you are unable to make or communicate health care decisions yourself. It is a legal document giving authority to the person (or people) of your choosing who you trust to make medical decisions on your behalf.
  • Advance Directive / Living Will: A living will is the legal document that you can use to direct whether you want your life prolonged in specific circumstances. It is a great way to be able to direct your health care power of attorney so that they can best champion your wishes in the event that you cannot make them clear at the time.
  • Advance Instruction for Mental Health Treatment: An advance instruction for mental health treatment works much like an advance directive or living will, but instead applies when one lacks the capacity to make or communicate mental health treatment decisions. This document gives your appointed agent the power to make decisions regarding mental health treatment – and includes specific directions for your agent to follow regarding the use of medication, shock treatment, and/or admission to a mental health facility.
  • Power of Attorney: A durable POA is a great choice for many people as it allows for you to appoint an attorney-in-fact who can basically step in to your shoes and act on your behalf with regard to your financial affairs.
  • Revocable Living Trust: While you can be your own trustee of your RLT during your lifetime, you can also appoint a secondary, or successor, trustee to take over in the event of incapacity. Since a trustee only has power over the property held in trust and subject to the trust document itself, the grant of power is generally less broad than a POA, creating an RLT may be an option to consider if you want to put greater restrictions on the actions of your attorney-in-fact.
  • Standby Guardianships for Minors: if you have minor children but become incapacitated, having a standby guardian for any minor in place can ensure that the people you trust the most will be able to fill in for you to make decisions on behalf of the child.

We highly recommend that you put a plan in place so your wishes are followed in the event of incapacity, and perform periodic reviews of your documents to make sure nothing needs to be changed or updated. 

"What does all of this stuff mean?"

"What does all of this stuff mean?"

Are you curious what some of the components of a basic estate planning package with Clayton & Clayton involve? Some quick definitions follow, but as always, feel free to reach out to us your questions.

Planning For Your Pets

While it is easy to be dismissive of the idea of creating a pet trust – it’s not something to completely rule out. When it comes to our furry/feathered/hoofed family members – the law doesn’t distinguish between “pets” and “property” – which means that you may need do some extra planning when it comes to the care of your pets if you become unable to care for them or pass away.


The two attorneys at Clayton and Clayton are unfortunately currently experiencing the pitfalls of a lack of appropriate planning first-hand; James’ grandmother is in rehabilitative care, which has meant that our household has temporarily grown with the addition of a tiny Chihuahua named “Prissy.” While she has many adorable and lovable qualities – the sudden arrival of a strange dog has not been the most ideal situation for a family with a toddler, hectic and long work hours, and a busy travel schedule.


What it has done, however, is make us more aware about the importance of having a discussion with our clients about their wishes when it comes to the care of their beloved pets.


While a will is a valid place to establish where you want your pets to go – there are some benefits to using a trust over a will, such as:


      Incapacity: A trust can appoint a guardian for your pet in the event that you are medically incapacitated and cannot care for your animal or communicate your desires about where your pet should go. A will won’t be effective until after you pass away.

      Quick: A trust does not need to go through probate – and will therefore allow the pet to be immediately transferred to the guardian you choose, and allow for funds to immediately go towards the care of the pet. If you disburse funds to cover the costs of pet care through a will, they will not be available until after the will goes through probate – which can take years in some instances – leaving the kind people who took your pet in in a potentially financially stressful situation.

      Reliable: A trust will allow the disbursement of funds to be monitored – the person who takes your pet in can’t drop the pet off at the pound and use the money to take an elaborate vacation or renovate their kitchen.

      Choice: A trust will allow for any remaining funds left after your pet is cared for to go wherever you prefer – a local animal shelter, your family, etc.


If you want to talk about the options that are available for your pets in the event that you cannot care for them, feel free to give us a call or send us an email. We are happy to talk about it with you in more de“tail.”


    Procrastinate: “Delay or postpone action; put off doing something.” The definition seems harmless; the simple shuffling of a task to a time that is more appealing. Often, people procrastinate until they are in a better mindset to tackle a task or they avoid the task altogether because it is unpleasant in some way. Estate planning generally falls into the second category. Planning for your own demise is not a task that is undertaken with any great amount of glee. Most people try to avoid confrontations with their own mortality until the eventual becomes imminent– procrastination is the perfect way to avoid dealing with these decisions. “I will do it tomorrow.” However, tomorrow is not guaranteed.  

    Estate planning is possibly one of the most selfless legal acts a person will perform during their life. For example, the decisions made in a will take effect only after the testator has, as my granddad would have said, had their worst spell. The decisions made with your attorney make life easier for those grieving beneficiaries that remain, not the testator; a clearly written document outlining the disposition of the testator’s property removes the uncertainty felt by most people who's loved one passed without a plan. 

    I assume if you are reading this blog post you have already realized the importance of planning for end of life needs and you are aware that there are things you need to do to plan for the eventuality of death or incapacity. Don’t procrastinate. We’re all in this together so let’s start talking about it!

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