Fong Law Group

What Are Some Good Tips for Business Succession Planning in The Internet Age? 在這互聯網時代，有什麼好提議給商業繼任計劃？ (中英對照)

“Many business owners build their businesses hoping that they will continue to generate income for their heirs, after they pass away. However, businesses often die or lose significant value when the owner dies.”

When considering how to make sure your business continues to thrive, it’s important to remember that if you do nothing, your business already has a default plan in place: if no additional planning is done, your business is an asset of your estate and will be subject to probate.

Forbes’ article, “Business Succession Planning In The Internet Age,” says that there are four issues with this default plan. First, it can take years for a court to probate your estate. In that time, your business can dry up, when probate is finalized. Next, if you do not have an estate plan, your heirs may fight over who will inherit the business. Whoever inherits the business under the state’s intestate succession laws may also not be the best person to make sure your business will continue to grow and be successful. Finally, if you have co-owners, they might not like your heirs and could get into disputes with the new owners that harm the business.

There are two legal tools to look at when reviewing your options: a buy-sell agreement and good estate planning.

A Buy-Sell Agreement. This is a contract between the co-owners of a company that addresses a variety of business-changing events, such as when an owner dies. Rather than the deceased owner’s equity being a part of the assets distributed during probate, the buy-sell agreement can include an agreed-upon amount that will be paid to the estate, in exchange for the business repurchasing the equity. The purchase is often financed with a life insurance policy on each owner of the business.

Estate Planning. Instead of allowing your business to be subject to probate, a business owner can work with an estate planning attorney to make the business an asset of the owner’s trust.

With either option, be sure you note the important digital assets for the continued operation of your business. Your business’s digital assets may include customer lists, intellectual property and creative products. It is important to remember these tips on considering your digital assets:

1. Understand the policies that impact your tools. Review your software provider’s policies on what happens if your company needs to name a new point of contact, pay bills differently, or be transferred to a different company, in case the unexpected happens.
2. Security and redundancy. A company’s success requires owners and employees to keep proprietary information and client information secure. However, the concern for safety must be balanced with redundancy that considers which people will have access to digital assets and an understanding of what to do with them, if the owner or main management team is unable to tend to business as usual.
3. Add digital assets in legal documents. Include an inventory of digital assets in your buy-sell agreement or estate plan. Be specific about who should get access to digital assets.

Creating a detailed plan as to who should have access to your business’s digital assets in case of your incapacitation or death, is an important part of succession planning.

Reference: Forbes (April 8, 2019) “Business Succession Planning In The Internet Age”

“許多商人成立他們的企業是希望能在他們去世後繼續為他們的繼承人製造收入。可是，當企業主去世時，企業往往會倒閉或失去價值。＂

在考慮如何確保您的業務可繼續蓬勃發展時，更重要的是要緊記如果您什麼都不做，有人已經為您的企業做了一個預設的計劃：如果沒有做好額外的計劃，您的業務就是您的資產，將需通過遺囑認證。

Forbes的文章“Business Succession Planning In The Internet Age,”說到，此預設計劃存在四個問題。首先，法院可能需要數年時間來審理您的遺產。到了那個時候，當遺囑認證敲定時，您的企業可能已不存在。接著，如果您沒有資產計劃，您的繼承人可能會因誰將繼承該企業而爭吵。根據州的無遺囑繼承法，　繼承業務的人可能不是一個使業務持續發展並取得成功的最佳人選。最後，如果您有合夥人，他們可能不喜歡您的繼承人，並可能與新業主發生爭執而有損業務。

在審視您的選擇時，有兩種法律工具可考慮：買賣協議和良好的資產規劃。

買賣協議。這是公司合夥人之間所簽的合同，該合同涉及各種業務變化，例如企業主去世時。買賣協議不是將去世的企業主的權益作為遺囑認證期間分配資產的一部分，而是將商定金額支付給遺產，以換取回購過世合夥人的股權。回購通常由企業的各業主的人壽保險來提供資金。

資產規劃。企業主可與資產規劃律師合作，將企業資產變成企業主的信託的資產，以避免企業資產通過遺囑認證。

無論選擇哪種方式，請務必記下重要的數碼資產，以便繼續經營您的業務。您企業的數碼資產可能包括客戶名單，知識產權和創意產品。在考慮您的數碼資產時，需要緊記一些技巧：

1.了解影響工具的政策。如果您的公司需要指定新的聯繫人，以不同的方式支付賬單或轉移到別的公司，以防意想不到的事情發生，請查看您的軟件供應商的政策。

2.安全和過多。公司的成功是有賴企業主和員工保護專有信息和客戶資料的安全。但是，如果企業主或主要管理團隊無法照常營運，那麼對安全的關注必須包括考慮哪些人可以取得數碼資產以及了解如何處理這些資產。

3.在法律文件中加入數碼資產。在您的買賣協議或資產計劃中包含數碼資產清單。具體說明誰可取得數碼資產的權限。

制定周詳的計劃，確定在您失去能力或去世後誰可取得您企業的數碼資產的權限，這是繼任計劃的重要部分。

參考: Forbes (April 8, 2019) “Business Succession Planning In The Internet Age”

Crypto Business Success Story Ends with Two Twists

“Gerald Cotten, the Canadian behind cryptocurrency exchange Quadriga CX, filed a will 12 days before his death listing substantial assets, according to court documents.”

The death of this 30-year-old cryptocurrency exchange founder, has exposed a key estate planning issue for anyone who owns digital assets and especially cryptocurrency: he did not leave a way for anyone to retrieve the cryptocurrency. He also died only 12 days after completing his will, as reported by Bloomberg in “Crypto Exchange Founder Filed Will 12 Days Before He Died.”

His unexpected death left $145 million in Bitcoin and other digital assets protected by his passwords and thorough security efforts. No provisions were made for anyone to retrieve the assets. His wife Jennifer Robertson was his sole heir and executor to his estate.

The Canadian press reported that a Nova Scotia Supreme Court Justice granted the company a 30-day stay on Tuesday to halt any lawsuits from proceeding at this time, and the Vancouver-based firm was granted protection from creditors.

The business was launched late in 2013, and users deposited cash or cryptocurrency through its online trading platform, storing digital currency on blockchain ledgers that are only accessible through a code. There were 363,000 registered users and 92,000 have account balances owing to them, in either cash or cryptocurrencies.

Cotten, the sole owner and director, did an excellent job of protecting his assets. This was fine while he was alive, but now presents a serious situation for account holders. He was very conscious about security. Everything, from his laptop, email addresses and messaging system, was encrypted. He was the only one who handled funds, coins and the banking and accounting side of the business. He also moved most of the digital coins into storage that was not connected to the internet, to avoid being hacked.

His wife can’t find his passwords or any business records for the company. Experts who attempted to hack into the system were only partially able to do so. Attempts to open an encrypted USB key have also failed. Some clients who claim that they are owed money, have retained counsel to represent them during creditor protection proceedings.

Cotten and his wife had no children. The assets that he left to her include several properties, an airplane, a yacht, a luxury car and his two pet chihuahuas. He died as a result of complications, due to Crohn’s disease.

This is an extreme example of what can go wrong, when digital assets are not made part of an estate plan. Most people today do have digital assets and need to address them in their estate plan to prevent the loss of both financial assets and sentimental items, like photos and videos.

Reference: Bloomberg (Feb. 5, 2-019) “Crypto Exchange Founder Filed Will 12 Days Before He Died”

Estate Planning Review for 2019 2019年資產規劃審查 (中英對照)

“While clients often focus on the market, goals and portfolio performance, it never hurts to make sure estate planning items are correct, particularly heading into the new year.”

Your estate plan has a big impact on your finances and should be considered as important as your investment portfolio, says Wealth Management in the recent article “Eight Simple Estate Planning Review Items for 2019.”

Here are the eight items that need your attention:

Beneficiary designations. When was the last time you checked these? Beneficiary designations are usually looked at when an account is opened, and often that’s the last time people see them. Look at beneficiary designations for tangible assets, like homes, cars or collectibles. Check legal documents, including bank accounts and insurance policies.

Digital asset designations. This is a relatively new area, but very important. Even if you don’t own any cryptocurrency, chances are good you have assets like photos, reward points, websites and more. Each social media platform has a different policy for how accounts are treated on the death of the owner. You’ll need an inventory and may want to use an online service for managing your digital assets after you die.

Trust funding. This is where many estate plans fall apart. Funding trusts often requires changing titles on bank accounts, homes and other assets into the name of the trust. Major purchases, like a boat or second home, also need to have their titling corrected, so they correspond to trusts.

Documents for adult children. When your children turn 18, they are legally adults and you do not have the legal right to get information or make decisions on their behalf. If you don’t have HIPAA releases, Power of Attorney, and other documents, you may find yourself unable to help in an emergency.

Keep up with life changes. Review your estate plan with an eye to changes in your life: births, deaths, marriages, divorces, big purchases, etc. If you haven’t met with your estate planning attorney or had a phone conversation in a few years, make an appointment now for a review.

Secure photos and memories. How many times have we watched dramatic images of fires, floods, and earthquakes in 2018? Videos, photos, family heirlooms, and artifacts and other irreplaceable items should be stored in some digital format, or in the cloud. If the family includes artists, take photos of paintings or sculptures so at least you have an image of the item should it be destroyed.

Discuss wishes with loved ones. One of the biggest challenges after someone passes, is knowing what they wanted to be done with personal possessions. If you have every Beatles album, unopened, what do you want to happen to your collection? Make inventories and then tell your family what you’d like to have happen with your possessions. You can create a “Legacy Letter” and put it down on paper. It’s not legally binding, but it will give your family some direction.

Prepare for incapacity. This is not everyone’s favorite task, but necessary. If you were conscious but not able to speak, what information would your family need? Work with your estate planning attorney to create the necessary legal documents, including medical directives, and tell your family members where they are located. Some families keep certain documents (like a Do Not Resuscitate or lists of medications) on the refrigerator, so that Emergency Responders can gain access to important medical information quickly in an emergency.

Yes, it’s a good-sized list of to-dos’, and you won’t get it all done in January. However, start in January 2019, so you and your loved ones enjoy the protection you need.

Reference: Wealth Management (Dec. 12, 2018) “Eight Simple Estate Planning Review Items for 2019”

“雖然客戶往往關注市場，目標和投資組合表現，但確保資產規劃內容是正確的總沒有害，特別是進入新一年。”

Wealth Management在最近的文章“Eight Simple Estate Planning Review Items for 2019.”

中表示，您的資產計劃對您的財務狀況有很大的影響，應被視為與您的投資組合同樣重要。

以下是需要注意的八個項目：

指定受益人。你最後一次檢查指定受益人是什麼時候？這通常是在你開立帳戶時查看，而這亦通常是最後一次。查看有形資產的指定受益人，如房屋，汽車或收藏品。檢查法律文件，包括銀行賬戶和保險單。

數碼資產的指定。這是一個相對較新的領域，但非常重要。即使您沒有任何加密貨幣，也有可能擁有照片，獎勵積分，網站等資產。每個社交媒體平台都有不同的政策，用於擁有去世後如何處理帳戶。您需要一個庫存，並希望在您去世後別人可使用於網絡上來管理您的數碼資產。

注資信託。這是許多資產計劃敗筆的地方。資金信託通常要求將銀行賬戶，房屋和其他資產的持有人更改為信託的名稱。大眾購買，如船或第二個家，也需要更改業權以跟信託對應。

給成年子女的文件。當您的子女年滿18歲時，他們在法律上已是成年人，您沒有合法權利取得信息或代他們做出決定。如果您沒有HIPAA，授權委託書和其他文件，您可能會發現自己無法在緊急情況下提供幫助。

跟上生活的變化。檢查您的資產計劃，關注您生活上的變化：出生，死亡，婚姻，離婚，大量買賣等。如果您已幾年沒有與您的資產規劃律師見面或進行電話會談，請現在預約並審查。

保護照片和記憶。我們在剛過去的2018年看到多少 火災，洪水和地震這些戲劇性的圖像？視頻，照片，家傳之寶，工藝和其他不可替代的物品應以某種數碼形式或云端存儲。如果這個家庭包括藝術家，可以拍下圖畫或雕塑的照片，這樣萬一被摧毀至少你有一個圖像。

與親人討論意願。在一個人去世後所面臨的最大挑戰之一就是知道他們想要用個人財產來做些什麼。如果您有未拆開的披頭四專輯，您希望在您的收藏怎樣？製作庫存，然後告訴你的家人你的財產該怎樣處理。您可以建立一份“遺書”並將其寫在紙上。它沒有法律約束力，但它會給你家人一些方向。

為喪失能力作出準備。這不是每個人喜歡的任務，但是必要的。如果您有意識但無法說話，您的家人需要哪些信息？與您的資產規劃律師合作，建立必要的法律文件，包括醫療授權書，並告訴您的家人他們所在的位置。有些家庭保留某些文件（如“不要急救”或“藥物清單”），以便緊急救援人員能夠在緊急情況下得知重要的醫療信息。

是的，這是一個很好的待辦事項清單，你不會在一月份完成所有工作。但是，從2019年1月開始，您和您的親人該得到您需要的保障。

參考: Wealth Management (Dec. 12, 2018) “Eight Simple Estate Planning Review Items for 2019”

Is Your Junk Drawer Better Organized than Your Digital Assets? 您的垃圾抽屜是否比您的數碼資產整理得更好？ (中英對照)

“If you spend a lot of time on the Internet, you’re not just shopping or being entertained, or following the news or participating in an online community. You’re probably also dealing with accounts and information that eventually can become part of your digital ‘estate.’”

If your digital estate is not properly cared for, it can lead to problems for your heirs, including an opportunity for hackers to try to get at whatever assets they can, reports the White Mountain Independent in the article titled “Is your ‘digital estate’ in order?”

Think about how many of your personal accounts are online:

• Financial accounts: banking, brokerage, bill-paying utilities;
• Virtual property: credit card points, frequent flyer miles, cryptocurrency;
• Business accounts: eBay, Amazon, Etsy; stock photo accounts;
• Email accounts: Gmail, Outlook, Yahoo;
• Social network: Facebook, Twitter, LinkedIn, Instagram; and
• Online digital storage: Dropbox, Google Drive, iCloud.

Those are many assets to protect. Where do you start?

First, create an inventory. Use the categories above or create your own. However, you should make it organized.

Document your wishes for how you want your digital assets to be managed. If you don’t specify this, you may be leaving a wide-open arena for long legal battles. Your heirs and beneficiaries may never gain access to them. Hackers might go after them and use your identity. Your heirs may also have to engage in an expensive and protracted battle with a social media giant with costs eating into their inheritance.

Name a digital executor in your will. This is a relatively new area, but you can name a person to be your digital executor. Not all states recognize this position, so you’ll want to speak with a local estate planning attorney to find out what the laws are in your state.

You will also need to go through all of your online accounts and learn what each platform requires, in the instance of the account owner’s death.

Review your plans, especially as you add new digital assets.

Managing digital assets can be as difficult as managing tangible assets. The laws are still evolving, so speak with your estate planning attorney to make sure that your estate is prepared, and your heirs will not face a digital nightmare after you have passed away.

Reference: White Mountain Independent (Oct. 26, 2018) “Is your ‘digital estate’ in order?”

“如果你花很多時間於互聯網上，你可能不只是購物或娛樂，還會關注新聞或參與在線團體。您可能還需處理最終可能成為您數碼“資產”一部分的帳戶和相關信息。”

如果您的數碼資產未得到妥善管理，可能會給您的繼承人帶來問題，包括有機會讓黑客試圖奪得任何資產，White Mountain Independent在標題為““Is your ‘digital estate’ in order?”

”

想一想您有多少在線的個人帳戶：

• 金融賬戶：銀行，經紀賬戶，支付水電費賬單;
• 虛擬財產：信用卡積分，飛行常客里數，加密貨幣;
• 企業賬戶：eBay，Amazon，Etsy; 存放照片帳戶;
• 電子郵件帳戶：Gmail，Outlook，Yahoo;
• 社交網絡：Facebook，Twitter，LinkedIn，Instagram; 及
• 在線數碼存儲：Dropbox，Google Drive，iCloud。

有那麼多的資產需要保護。應從哪裡開始呢？

首先，建立一個清單。使用上面的類別或自創清單。但是，你應該把它組織好。

把您希望如何管理這些數碼資產的意願記錄下來。如果你沒有指明這一點，這可能會引起漫長的法律訴訟。您的繼承人和受益人可能永遠無法取得它們。黑客可能會追擊這些數碼資產並使用您的身份。使得你的繼承人迫不得已與社交媒體巨頭展開一場昂貴而漫長的爭鬥，而這會吃掉他們繼承得來的遺產。

在遺囑中為數碼資產指定執行人。這是一個相對較新的領域，但您可以將某個人命名為您的數碼執行人。並非所有州都承認這一點，因此您需要與當地的資產規劃律師聯繫，以了解您所在州的法律。

在帳戶擁有者死亡的情況下，您還需要瀏覽所有在線帳戶並了解每個平台所需的內容。

檢查您的計劃，尤其是在你增添新數碼資產時。

管理數碼資產可能與管理有形資產一樣困難。法律仍在不斷演變，因此請與您的資產規劃律師聯繫，以確保您的資產準備好，並且在您去世後您的繼承人不會面臨數碼噩夢。

參考: White Mountain Independent (Oct. 26, 2018) “Is your ‘digital estate’ in order?”

Who Gets Mom’s E-books When She Dies?

“Digital Estate planning is about organizing all your digital assets and property and making arrangements that address what will happen to them. after you die or otherwise lose the ability to use or manage them.”

Including digital assets in your estate plan, is not just for Bitcoin owners. What about less complicated digital assets, like a library of e-books or family photos that were stored in the cloud? There are a number of steps everyone needs to take, says The Eagle in the article “Your digital estate: 3 tips for the seasoned crowd.” Even if you don’t consider yourself “seasoned,” these are important steps to take to protect your online life, from fiction to finance.

Knowledgeable boomers know they need to double check their account titles, wills, trusts, insurance policies and powers of attorney. However, they don’t all realize how much of their lives is conducted online and how important those assets are to their estate plan.

Digital estate planning focuses on organizing digital assets of all kinds and making the correct arrangements for what will happen to them, after you either pass away or become incapacitated.

You don’t own any cryptocurrency? Do you have a Facebook page? Have you ever created a website or a blog? What about a LinkedIn profile? See—you have digital assets. You need a plan.

The best way to start is similar to what you do with tangible assets. Start with a list:

• Hard assets, including computers, laptops, digital readers like Kindle or Nook, smart phones and external data storage drives.
• Social media and networking sites—everything from Facebook, LinkedIn, Twitter, Instagram, Snapchat, etc. Be sure to also include any gaming websites.
• Online data storage accounts, like Dropbox.
• Domain names, regardless whether you built a website for the name.
• Intellectual property

There’s sentimental value to many of these accounts, like the photos stored in the cloud. There’s also practical value. If you pass away and your family is widespread and connects regularly on social media, would it be helpful for a family member to log into your social media accounts and share information about your passing? We used to have obituaries published in local newspapers, but today we post information online.

There may be financial value as well. If you own a website that contains copyrighted material or intellectual property, you will want an executor to gain access. You’ll also want to address the issue of your emails, especially if you are a business owner.

The next step is to review the list and see what, if any accounts, you don’t use anymore and would like to shut down. Then begin looking at each digital account you have and find out how each platform addresses access, after the owner has died or become incapacitated. Facebook allows users to memorialize the account and preserve the space for friends and families to share memories. Twitter allows immediate family members to deactivate the account, as long as proof-of-death can be documented. Google has an Inactive Account Manager service that permits the account to be transferred to a designated person, after a certain period of account inactivity.

Social media websites are increasingly aware of the issue of account owners dying, and every platform has its own process, so you’ll need to go through each, one by one.

Next, you’ll need to name a digital executor. This is not, as yet, a legally enforceable role, but it will make winding things down much easier. Your digital executor will need your passwords and user names, but they will not be able to simply log in and make changes using that information.

Reference: The Eagle (Nov. 8, 2018) “Your digital estate: 3 tips for the seasoned crowd”

The Brave New World of Cryptocurrencies and Estate Planning

“To ensure that clients' digital assets are passed on to heirs and beneficiaries, advisors should review and take these important measures.”

When it comes to digital assets, the future is here and right now. While you can’t be sure about the value of cryptocurrencies, you can be sure of one thing: one day, the human owner of the digital assets will die. What happens then? This article from ThinkAdvisor, “4 Key Steps for Estate Planning with Cryptocurrencies,” explains how cryptocurrency investors can pass their digital assets to their heirs through estate planning.

Record Private-Key Custody and All Access Details. Digital currency is not the same as bank or investment accounts. The information can be lost permanently, if the investor fails to share the access information. Here’s what needs to be shared for most cryptocurrencies:

Private Key – A public-private key system is used to ensure transactional validity. The public key becomes public every time the cryptocurrency is bought and sold but only the owner knows the private key. This is used to verify ownership and access accounts. A physical record of the key must be created and maintained. Keeping it in a bank safety deposit box or home safe insulates the private key from hacking.

Passwords – Investors who do not secure their digital assets in “hardware wallets,” often have their cryptocurrency stored on default digital wallets provided by an exchange. The owner must share their user name, password and security question information with the exchange, so that digital assets can be retrieved.

Two-Factor Authentication – Many exchanges require investors to use two-factor authentication, usually via a mobile app that provides a unique time to gain access. User name, password and security system must be recorded for anyone else to access.

Use a Hardware Wallet. Once digital currency is purchased on an exchange, it is automatically stored on the exchange’s default wallet, so the investor can access them. However, these default wallets are susceptible to hackers. Investors should immediately transfer their currency to a hardware wallet. Purchased online, they are generally encrypted flash drives that require a password or PIN code to gain access. If you lose that flash drive, or password or PIN code, you may have lost all the assets. However, some hardware wallets support 24-word recovery phrases to help investors restore their accounts. Investors are advised to buy a secondary hardware wallet and make an exact duplicate to have another means of access.

Uniform Fiduciary Access. Roughly 24 states have passed some version of the Uniform Fiduciary Access to Digital Access Act. These laws empower fiduciaries to manage digital assets.  However, they may not yet provide that same level of power for cryptocurrencies.

Determine Tax Liability. The IRS treats digital assets as property, rather than currency for tax purposes, so any capital gains or losses in digital asset transactions must be reported. Many online digital asset exchanges provide data that tracks sales and purchases. However, they don’t always provide enough information to determine the tax basis. Record and save information on every transaction to be able to do the calculations on your tax liability.

If you are involved in cryptocurrency and want to be able to pass these assets along to your heirs, you will need to plan ahead. Speak with an estate planning attorney who is familiar with this new kind of property to ensure that your investments in this new asset do not disappear.

Reference: ThinkAdvisor (Oct. 22, 2018) “4 Key Steps for Estate Planning with Cryptocurrencies”

Bring Your Estate Plan into Today’s Digital World 將您的資產計劃帶入今天的數碼世界 (中英對照)

“With so much of our financial information and personal information now online, estate plans today must address the fact that our digital selves will surely outlast our human selves.”

Life, as well as estate planning, used to be much more one-dimensional. Now that our lives are lived “In Real Life” (IRL) and online, estate plans need to include both aspects of our lives, according to this recent article from North Bay Business Journal titled “Your digital life likely will outlive you, so here’s how to bring your estate plan into the modern age.” You could decide not to deal with it, but then you are leaving a mess behind for your loved ones to untangle.

Here are a few of your digital assets to consider: bank accounts, email accounts, Facebook page, Linked In profile, online photo albums, blogs and websites. They’re likely to be around long after you are gone.

This is still a relatively new area of estate planning. What often happens is that heirs think they can simply find and use the decedent’s user name and passwords to access their accounts. However, what they learn is that they are legally not permitted to do so. There are state and federal laws, online platform user agreements and a host of barriers to retrieve online assets.

A new law was passed in 2017 in California that attempted to bring order to this chaos back in 2017. The Revised Fiduciary Access to Digital Assets Act allows executors and trustees to obtain disclosure of a person’s digital assets, after the original owner dies but only under certain conditions.

In the recent past, federal and state laws have made it hard for executors and trustees to gain access to these assets without a court order.

Just being the executor or trustee does not automatically give you the right to access assets. There has to be evidence that the decedent consented to disclosure and a court order may be necessary to prove the consent was correct.

The new law mainly gave social media platforms and privacy advocates what they wanted: a requirement of prior consent before disclosure.  However, the end result is that it is easier to gain access to digital assets, if executors and trustees can show that the decedent did consent to disclosure.

However, it’s still not that simple. Here are a few steps to help your loved ones deal with your digital assets:

Inventory every digital asset that you have. Create a list of log-in and password information, plus any “secret questions/answers.”

Tell your trusted family member or friend where that list is. Store it with your other estate planning documents, possibly in your attorney’s vault.

Ask your estate planning attorney how they handle digital assets. Your lawyer will know what steps are necessary in your state to ensure that someone will have legal access to your digital assets after you pass away.

Do not include your digital asset inventory, as part of your will. If your estate goes through probate, all of your account information will become part of the public record.

Many wills don’t include provisions about digital assets. If this is the case with your will, contact your estate planning attorney now to make sure your online life is as protected as your “In Real Life” life.

Reference: North Bay Business Journal (Oct. 19, 2018) “Your digital life likely will outlive you, so here’s how to bring your estate plan into the modern age”

“現今有這麼多財務及私人資料在網絡上，資產計劃今天必須解決的事實是我們的數碼資產必定是比我們自我本身恆久。”

生活以及資產規劃曾經很簡單。現在，我們生活在“現實生活中”（IRL）和網絡上，資產計劃需要包括我們這兩個方面，按照 North Bay Business Journal 題為“Your digital life likely will outlive you, so here’s how to bring your estate plan into the modern age” 你可以決定不處理，但你會留下爛攤子讓你的親人去解決。

以下是您需要考慮的一些數碼資產：銀行賬戶，電子郵件賬戶，臉書頁面，Linked In個人資料，網上相冊，博客和網站。在你離開後這些都會一直存在。

這仍然是一個相對較新的資產規劃領域。經常發生的是，繼承人認為他們可以簡單地找到並使用去世的人的用戶名和密碼來取得他們的帳戶。但是，他們得知法律上並不允許他們這樣做。有州和聯邦法律，網絡平台用戶協議及一大堆障礙去阻止他們去取得這些數碼資產。

於2017年加州通過了一項新的法律試圖把這混沌在2017年帶回正軌，數碼資產使用權限修訂可以讓執行人及受託人在原擁有人去世後在一定的條件下取得一個人的數碼資產。

最近，聯邦和州法律規定遺囑執行人和受託人在沒有法院命令的情況下很難獲得這些資產。

僅作為執行人或受託人並不會自動授予您取得數碼資產的權利。必須有證據證明得到死者同意，並可能需要法院命令來證明同意是正確的。

新法律主要為社交媒體平台和隱私主義者提供了他們想要的東西：在披露之前需事先得到同意。可是如果遺囑執行人及受託人有證據證明死者同意披露, 這樣最終結果這些數碼資產更容易被取得。

但不是那麼簡單。以下是幫助您的親人處理您的數碼資產的幾個步驟：

清點您擁有的每個數碼資產。列出所有登錄和密碼的資料，以及任何“秘密問題/答案”。

告訴您信任的親友，該列表在哪裡。將其與您的其他資產規劃文件放在一起，可能存放在您的律師中。

詢問您的資產規劃律師如何處理數碼資產。您的律師知道您所在的州的程序，以確保在您去世後有人可以合法地取得你的數碼資產。

請勿將您的數碼資產清單列入遺囑。如果您的遺產需通過遺囑認證，您所有帳戶的資料將成為公開紀錄的一部份。

許多遺囑對數碼資產沒有規定。如果您的遺囑屬於這種情況，請立即聯繫您的資產規劃律師，以確保您的網絡生活與您的“真實生活”一樣受到保障。

參考: North Bay Business Journal (Oct. 19, 2018) “Your digital life likely will outlive you, so here’s how to bring your estate plan into the modern age”

The Key Documents Every Estate Plan Must Have 每個資產計劃必須具備的關鍵文件 (中英對照)

“Even the most carefully constructed estate plan often overlooks a client’s digital assets. A plan is essential, as both state and federal laws can create roadblocks to accessing digital assets.”

The value of a thoughtfully designed estate plan that provides for the eventual distribution of a person’s assets is generally understood by most people, even those who put off putting one into place. However, according to this important article from Think Advisor, titled “The Big Hole in Estate Plans: Digital Assets,” many plans overlook digital assets.

The person who now does not have an active online life is the exception. Many people don’t realize that they have substantial digital assets with both sentimental and financial value. Without a clear plan that specifies what someone wants to be done with these digital assets, there are both federal and state laws that can block loved ones—even those named executor or power of attorney—from accessing those assets.

Digital asset planning must now be part of every comprehensive estate plan to ensure that any disposition of a person’s wishes for these assets takes place.

The concept of estate planning for digital assets actually covers a broad range of assets from email to social media to PayPal, domain names, intellectual property and cryptocurrency. Some assets may only have sentimental value but others such as domain names or business contact lists in email accounts may also have significant monetary value.

Without a clearly documented plan, data privacy laws can prevent the online service provider from allowing an executor or family member access to these accounts. The Uniform Fiduciary Access to Digital Assets Act, which has been passed in most states, provides that an owner of digital assets can specify who can access and dispose of any digital assets after death.

If there has not been any planning, the online provider’s terms of service agreement, or TOSA, will control what happens to accounts after death. In some cases, TOSA will even override directions in a will or other document, especially when the service provider has provided specifications for how account holders are expected to make their post-mortem wishes known.

Note that instructions by a person using their online provider’s tools, will supersede any instructions in the will, so include these documents in the estate plan. They should be updated regularly.

People need to create comprehensive lists of all their digital assets, including instructions on how they want these assets to be handled after they die. They should list user names, passwords and security questions. Do not include this information in the will, because it can be accessed publicly during probate. They then need to review the TOSA and follow each platform’s rules for providing post-mortem access.

Talk with your estate planning attorney about your digital assets and plan to make them part of your overall estate plan.

Reference: Think Advisor (Oct. 4, 2018) “The Big Hole in Estate Plans: Digital Assets”

“即使是最精心規劃的資產計劃也經常忽略了客人的數碼資產。計劃是必需的，因為州和聯邦法律都可能阻礙取得數碼資產。“

一個提供分配個人資產的精心規劃的資產計劃的價值通常被大多數人所理解，即使是那些推遲放置一旁的人。然而，根據Think Advisor的這篇題為“The Big Hole in Estate Plans: Digital Assets,”的重要文章，許多計劃忽略了數碼資產。

現今世代幾乎所有人都活躍於互聯網生活。但許多人沒有意識到他們擁有大量具有情感和財務價值的數碼資產。如果沒有明確的計劃來指定某人可處理這些數碼資產，那麼聯邦和州法律都可以阻止親人,甚至那些被稱為執行人或授權人來訪問這些資產。

現在，數碼資產規劃必須成為每個資產計劃的一部分，以確保這些資產按個人意願來處置。

數碼資產的資產規劃概念實際上涵蓋了從電子郵件到社交媒體到PayPal，域名，知識產權和加密貨幣的廣泛資產。某些資產可能只有感情價值，但電子郵件帳戶中的其他資產（如域名或業務聯繫人列表）也可能具有重大的金融價值。

如果沒有明確的計劃，數據隱私法可以阻止互聯網供應商允許執行人或家人取得這些帳戶。大多數州通過的“統一信託獲取數碼資產法”規定，數碼資產擁有人可以指定誰可以在去世後取得和處理任何數碼資產。

如果沒有任何計劃，互聯網供應的服務條款協議（TOSA）將控制死後帳戶。在某些情況下，TOSA甚至會凌駕遺囑或其他文件中的指示，尤其是當服務供應商為帳戶持有人如何讓別人得知其遺願作出了規範。

請注意, 帳戶持有人對網上工具提出的指示, 這將取代遺囑中的任何說明，因此請將這些文件包含在資產計劃中及定期更新。

人們需要建立所有數碼資產的綜合列表，包括他們希望這些資產在死後如何處理的說明。他們應該列出用戶名，密碼和安全問題。不要在遺囑中包含此信息，因為它可以在遺囑認證期間被公開。然後，他們需要審查TOSA並遵循每個平台的規則以提供去世後的取用。

與您的資產規劃律師討論您的數碼資產，並計劃將其作為整體資產規劃的一部分。

參考: Think Advisor (Oct. 4, 2018) “The Big Hole in Estate Plans: Digital Assets”

The Time to Plan is Now and Not Later

“The client wanted her surviving spouse to have access to her work email, but her employer shut down the email account following her death.”

This is one of those situations that does not have a happy ending. A woman died unexpectedly, and her employer shut down her email immediately after her death. Her surviving spouse knew that the woman had wanted him to have access to her emails, but it was too late.

These are the details, says an article from the Chicago Sun Times titled “Estate Planning: Now’s the time to prepare,” that can make the difference between a time when grief takes a back seat to logistics and a time when loved ones can focus on a major life-altering event.

As soon as you have assets to pass down to loved ones, you need to start planning your estate. If you start in your early 20s, it will become a habit and an on-going process.

Even if you don’t have a lot of assets, it doesn’t mean that you’re excused from planning for the worst situation.

Whether you do a basic estate plan, like putting a will, powers of attorney or a health care directive in place or if you need complex trusts and tax sheltering strategies, having an estate plan means you have a voice in what happens, even if you aren’t able to convey your wishes.

What do you need?

• Everyone needs a will.
• Everyone should review their beneficiary designations every few years to make sure the people named are still the people intended to receive the proceeds. That includes bank accounts, insurance policies, IRAs and more.
• Everyone needs health care and financial power of attorneys to outline their wishes.

If you are a parent, in most states, you need a will to name guardians for your minor children. You also need a 529 College Savings plan to start saving for college, which comes up faster than you can imagine.

You may need a trust, which offers more privacy than a will, because it keeps details about your private belongings and assets out of probate court.

You also need to organize your digital assets, as well as your financial and physical assets. Keep a list of your accounts and passwords. Most digital platforms from Facebook to Google to your financial institutions, have policies about what happens to the accounts and who has access.

Keep a list of your advisors and their contact information. That includes your estate planning attorney, CPA and financial advisor. You may want to have them meet your family members, so they are more comfortable with these advisors, when the time comes for them to work together.

As you move through the various stages of life, your plan will change.  However, you should get started now, so the process becomes second nature. Your family will thank you.

Reference: Chicago Sun Times (Sep, 17, 2018) “Estate Planning: Now’s the time to prepare”

Preparing to Settle Digital Estates 準備安置數碼資產 (中英對照)

“As our lives become more and more connected online, we increasingly need to also consider what to do with the digital estate, the online accounts of our dearly departed, many of which hold photos and personal memories, as well as sensitive financial information.”

Settling the estate of a loved family member or dear friend is a challenging and emotionally wearing process, reports The-Parallax in the article “How to settle your loved one’s digital estate.” If an estate plan is in place, some things are easier. However, even then, there are possessions to sort through, assets to distribute and many tasks that need to be done. Now, add digital assets to that list.

Most people know they need to do something, but few have a plan in place to direct their executor how to handle their digital assets. Creating a digital will can make the process easier. That could include everything from a Facebook account to photos in the cloud.

This is still a relatively new part of our digital lives that you want to prepare for. The tendency is to do nothing because people don’t know where to start.  Therefore, here is an overview of the most popular digital platforms and their requirements. This is a rapidly changing area, so do the homework to make sure that these policies are still in place.

Amazon does not yet have an automated process in place to close a deceased person’s account.

Apple asks that the executor contact Apple Support. You’ll need to provide the user’s Apple ID, email address and a death certificate.

Facebook requires a special request and proof of the authority under local law that you are the representative of the deceased person or their estate. You’ll also need their birth certificate and death certificate. Facebook allows you to make an account a memorialized Facebook account, where content remains visible according to their privacy settings and friends can continue to post. Living individuals can appoint a legacy contact to manage their account.

Google requires the use of a form, verification that you are a relative or legal representative, a death certificate and additional documents. If you are preparing for your own death, you can use the Inactive Account Manager to share parts of your account data, appoint a trusted contact and notify someone, if their account has been inactive for a certain period of time.

Instagram, which is owned by Facebook, provides two options: remove it or memorialize it. Verified immediate family members can require that the account be closed with proof that you are an immediate family member, along with the decedent’s birth and death certificates.

Linked In has a form to request the closing of a user profile. You’ll need to provide the person’s profile URL, the date of death, a link to an obituary, the most recent employer, emails associated with the account and other information.

Twitter has a format requiring you to make a request and will send information required. However, Twitter will only work with immediate family members or those authorized to act on behalf of the estate.

These are just a few of the top platforms. They all have a process that requires verification of the identity of the requester and of the death of the decedent. Newer platforms pop up all the time and some have processes, while others do not for the death of an account holder.

This is still a relatively new area and will change as time goes on. Speak with your estate planning attorney to make sure your estate plan includes addressing digital assets.

Reference: The-Parallax.com (Sep. 14, 2018) “How to settle your loved one’s digital estate”

“隨著我們的生活與網上變得越來越緊密，我們越來越需要考慮如何處理數碼資產，我們親人離去的網上賬戶，其中許多都持有照片和個人記憶，以及敏感的財務信息。”

家人或朋友的遺產，這是一個具有挑戰性和情感上的過程，據文章中的Parallax報導，“How to settle your loved one’s digital estate.”(如何解決你所愛的人的數碼資產) 如果有資產計劃，有些事情會更容易。但是，即便如此，仍然需要排序，分配資產和需要完成的許多任務。現在，你需要將數碼資產加到該列表中。

大多數人都知道他們需要做些什麼，但很少有人制定計劃來教他們的執行人如何處理他們的數碼資產。寫數碼遺囑可以使過程更容易。這可能包括從Facebook帳戶到雲端照片的所有內容。

這仍然是您想要準備的數碼生活中相對較新的一部分。一般人傾向於什麼也不做，因為人們不知道從哪裡開始。因此，這裡是最流行的數碼平台及其要求的概述。這是一個變化很大的領域，所以要做功課以確保這些政策仍然存在。

亞馬遜 (Amazon) 還沒有自動系統來關閉死者的帳戶。

蘋果 (Apple) 請求執行人聯繫蘋Apple支援。您需要提供用戶的Apple ID，電子郵件地址和死亡證明。

Facebook根據當地法律要求提供特殊證明您是死者或其遺產的代表。你還需要他們的出生證明和死亡證明。Facebook允許您將帳戶設為一個紀念的Facebook帳戶，內容根據其隱私設置保持可看見，並且朋友可以繼續發布訊息。

Google要求使用表格，驗證您是親屬或法定代表人，死亡證明和其他文件。如果您正在為自己的死亡做準備，您可以使用非活動帳戶管理器來共享部分帳戶數碼，指定信任的聯繫人並通知某人，如果他們的帳戶在一段時間內處於非活動狀態。

Instagram由Facebook擁有，提供兩種選擇：刪除或紀念。經過驗證的直系親屬可以要求關閉該帳戶，但要證明您是直系親屬，以及死者的出生和死亡證明。

Linked In有一個表單，用於請求關閉用戶配置文件。您需要提供此人的個人資料網址，死亡日期，訃告鏈接，最近的雇主，與該帳戶相關的電子郵件以及其他信息。

Twitter有一種格式要求您提出請求並將發送所需的信息。但是，Twitter僅適用於直系親屬或遺產執行人。

這些只是頂級平台中的一小部分。他們都有一個過程, 需要核實申請人的身份和死者的死亡。較新的平台一直在出現，有些還有流程，也有他平台沒有程序處理帳戶持有人的死亡。

這仍然是一個相對較新的領域，並將隨著時間的推移而改變。與您的資產規劃律師聯繫，確保您的資產計劃包括處理數碼資產。

參考: The-Parallax.com (Sep. 14, 2018) “How to settle your loved one’s digital estate”