Illinois Estate Planning and Elder Law Blog

Probate is an important legal mechanism that dictates the distribution of assets after a person’s death, specifically within a probate court and with a probate judge presiding over proceedings.

Surviving families and other interested parties usually trigger a probate process to cover issues relating to the deceased individual’s estate settlement. Interested parties typically hire a lawyer to represent their interest as well. In many cases, the estate pays for the legal fees with a fund set aside to handle probate costs.

How long the probate process takes depends on the quality of the estate planning already in place as well as on the state where the probate process is occurring, but the entire probate process is likely to be completed within six to nine months, according to the American Bar Association. It isn’t always a clean and efficient process, but it is a legal way to properly dispose of an individual’s property after their death with a stamp of approval from a probate court.

The rise of bitcoin as well as other virtual currencies associated with blockchain technology (known as cryptocurrencies) has created a number of new millionaires and raises new questions in the legal community when it comes to addressing cryptocurrencies in estate plans.

The Internal Revenue Service classifies cryptocurrencies as property for tax purposes, so owners of cryptocurrency may stipulate the disposition of their cryptocurrencies in their estate planning documents. However, the difficulty lies in determining how to enable the transfer of cryptocurrencies after the testator’s death without putting the security of the cryptocurrency holdings at risk during that person’s lifetime.

Cryptocurrencies are effectively bearer instruments that are accounted for in “wallets” on a decentralized blockchain. A cryptocurrency wallet is a software program that stores access credentials and interacts with blockchains to enable users to send and receive virtual currencies and monitor balances. Therefore, whoever knows a wallet’s access credentials (the private key) has access to the cryptocurrency in the wallet and can transfer the cryptocurrency to themselves. However, if no one knows a wallet’s access credentials, its contents are permanently lost, so it would be unable to be accessed by heirs after the wallet owner’s death.

An increasing number of our day-to-day activities are moving online. Whether financial, social, work, or leisure, all aspects of our lives have a growing presence on our computers or the internet. Because of this, smart estate planning should include addressing digital assets.

Historically, estate planning consisted primarily of physical and financial assets such as real estate, jewelry, collections, and other physical items – but today, digital assets also needed to be considered.

Planning for administration of digital assets poses unique challenges because online policies regarding this assets are constantly evolving. However, incorporating digital assets into your estate plan as well as setting up a regular process for updating this information are important to ensure your survivors can easily manage these assets and that your wishes for them are fulfilled.

Using DIY wills for estate planning can have unintended negative consequences according to Marguerite Lorenz, a writer for marketwatch.com. She reports having recently seen a DIY service that had many typos on its website and that its estate planning “packages” had a document labeled with three different names. This service – like many other estate planning sites – has its own attorneys, but access to specific help for your personal documents is rarely available. If personal advice is offered, it then appears to cost a great deal to receive.

So which is better, DIY wills or an online professional? For people with complicated personal and financial lives, a do-it-yourself service might not fully address your complexities. If you do estate planning by yourself, you might never know the results of your work, but your loved ones will.

According to Lorenz, there are a lot of DIY options for completing your own estate plan, and they have been available almost as long as we have had the internet. With the ease and availability of these programs, you would think that more of us would have an up-to-date estate plan.

When same-sex marriage was legalized in 2015, many legal issues that same-sex couples faced were ratified. But other areas, like estate planning, could still be problematic.

Elena Lidrbauch, certified elder law lawyer attorney at Hickman & Lowder Co. in Cleveland, Ohio, and Joy Savren, at Savren Legal in Cleveland, said that there are many ways estate planning could differ for same-sex couples – like how it relates to trusts, wills, healthcare, or power of attorney.

Both attorneys say that the biggest issue that same-sex couples could face is who would get custody of a child after a partner dies. Savren says that same-sex parents should be asking themselves questions when it comes to estate planning, like if they had children while married or before or if they had children from a previous marriage. Lidrbauch says that it comes down to whomever is the custodial parent. She says that before same-sex marriage was legalized, you couldn’t have same-sex parents listed on a birth certificate – it had to be one mother and one father.