Category: Estate Planning

July 26, 2018

OPINION: Electronic Wills? Maybe, But Not Like This

Anne W. Coventry

B22-0169, the Electronic Signature Authorization Act of 2017, is pending before the DC Council, and it is dreadful.  The Uniform Law Commission (ULC), relevant sections of the DC Bar, and a number of DC Fellows of the American College of Trust and Estate Counsel (ACTEC) have submitted, formally or informally, written opposition to the bill.  We have it on good authority that this bill is unlikely to pass, and we hope that is the case.

Are electronic wills coming?  Of course they are.  Last year in Australia, an unsent text message was accepted for probate as someone’s last will and testament.  (Unsent!  With an emoji in it!)  In July of this year, the Michigan Court of Appeals affirmed a trial court decision to accept for probate an entry saved in an app on a decedent’s smartphone.  As estimable and time-honored as the practice of writing wills may be, we are not so antediluvian as to think this field of human endeavor alone is immune to technological advances.  However, B22-0169 and bills like it are not the right way to bring will execution into the modern era.

There are many traps for the unwary with electronic wills (How do I revoke it?  What if it was saved on my phone and then I got a new phone and didn’t mean to erase it?  Which digital file is my “original” will?  How will anyone find my attesting witnesses later when my will is challenged if they only saw me sign it via Skype?  How will anyone even know that it was really me who signed it?  Or where I really was when I signed it?  What state law applies if I signed it in DC but my witnesses were in Nevada?).  Any legislation on electronic wills should be designed to solve more problems than it creates.  B22-0169 and bills like it are not the thoughtful product of a careful balancing of the desire for expediency and ease-of-use against consumer protection concerns and the risk of elder financial abuse.  They are instead the product of technology companies seeking to sell DIY wills (advertising them via scare tactics that make intestacy sound a lot more expensive than it really is for persons of limited means) without concern for the integrity of the process or the document’s quality and without thinking through all these traps for the unwary.

As advances in medicine increasingly keep people alive long past the point of capacity, incidences of fraud and undue influence are already likely to increase, and advances in technology already make mischief easier.  B22-0169 and bills like it would exacerbate these problems by (among other things) dispensing with the requirement that a will be attested by two witnesses in the testator’s presence.  As a result, people who think they are saving a few thousand dollars of legal fees (and avoiding the dreaded evil of intestacy) by preparing their own DIY wills online may leave their families with tens or hundreds of thousands of dollars of legal fees for will contests and related litigation.

The ULC has a drafting committee working on a uniform act, which includes Fellows of ACTEC, other estates and trusts law practitioners, law professors, and even representatives of the technology companies that want to sell electronic wills.  Yours truly has attended the committee meetings as a (somewhat noisy) observer.  That committee is giving careful thought to electronic wills and all the implications they have.  We hope the DC Council and other state legislatures considering electronic wills legislation will wait for the ULC work product rather than enacting rushed bills that would help only app vendors at the expense of the public good.

March 9, 2018

Tax Cuts and Jobs Act: Impact on Estate and Gift Planning

Adam P. Swaim

The Tax Cuts and Jobs Act (the “Act”), signed into law at the end of December, includes major changes to the Internal Revenue Code.  The Act is the most sweeping tax legislation to be enacted in decades and affects nearly all American taxpayers.  Under the Act, the federal estate, generation-skipping transfer (GST) and gift tax […]

February 15, 2018

State Estate and Inheritance Taxes after the Tax Cuts and Jobs Act

James D. Saintvil

The doubling of the federal estate tax exemption under the Tax Cuts and Jobs Act—from $5.49 million in 2017 to $11.18 million in 2018 ($11.4 million as of January 1, 2019)—has moved many wealthy Americans away from the impact of the federal estate tax. However, state estate taxes and state inheritance taxes remain a factor in estate planning for residents of […]

January 29, 2018

The District of Columbia Death with Dignity Act

Stephanie T. Perry

The District of Columbia Death with Dignity Act allows an adult D.C. resident who is terminally ill (i.e., medically confirmed to have less than six months to live) to request medication to voluntarily end his or her life. In order for a patient to participate in the Death with Dignity program, the following requirements must […]

October 17, 2017

“To my descendants, per stirpes…” (or… How do we pass the Packers’ tickets to our grandkids?)

Anne W. Coventry

Years ago, I described to a close friend (let’s call her Cathy) the difference between a division among descendants per stirpes and a division among the same descendants per capita at each generation.  In the midst of my explanation, Cathy suddenly exclaimed, “Oh!  You mean like the Packers’ tickets?”  This was a Eureka! moment; yes, […]

May 24, 2017

How Divorce Affects Your Estate Planning Documents

Micah G. Snitzer

After a divorce, the last thing on most people’s minds is contacting their estate planning attorney. However, if you fail to revise your estate planning documents after your divorce, your former spouse might still be a beneficiary of your estate and may continue to be a fiduciary under your will, revocable trust, power of attorney, […]