Skip to content

Posts from the ‘Estate Planning’ Category

iPhone Last Will and Testament Recognized as Valid in Australia

phnExecuting a will is meant to be a formal occasion. In Illinois, as in most U.S. states, the will must be in writing and signed by the person making the will in the presence of at least two credible witnesses.

Last month a court in Australia declared a will typed into the Notes app of an iPhone to be legally valid. According to an article in The Australian, the deceased person faced an “intense personal crisis” and typed his last wishes into his phone before ending his life. The “writing” was not signed or witnessed as required by Australian law, but the court still recognized it as a valid will. The attorney for the estate opined that the will was recognized under these very unique circumstances and that the ruling would not set a precedent for wills that are not executed according to formal requirements.

This is not the first time a foreign jurisdiction has relaxed its formal requirements for will execution. In 1948, a Saskatchewan farmer became trapped beneath a tractor. Using his pocketknife, he scratched into the tractor’s fender: “In case I die in this mess, I leave all to the wife.” The Canadian court recognized this “writing” as a valid will, and the tractor’s fender remains on display at the University of Saskatchewan’s College of Law.

Does the Australian ruling mean that everyone should pull out his or her phone and tap out a quick DIY will? Definitely not. Of utmost concern are the questions raised regarding the authenticity of the document if there are no witnesses: was what was typed into the phone just a draft instead of a final version? Did somebody access the phone and add provisions leaving money to him or herself? Was the deceased competent and thinking clearly when he or she typed the will?

With technology rapidly evolving, the formal requirements of executing a will may evolve as well. Nevada already recognizes electronic wills; however, the idea has been slow to take hold in other states. Until the law catches up to technology, the consequences of pushing the envelope could be harsh—if a court refuses to recognize an electronic will, the deceased person’s property will be distributed according to state law as though the person died without a will. This may or may not align with the deceased person’s actual wishes. Therefore, until the law progresses, adhering to the formal requirements of will execution (and relying on an estate planning attorney to draft the will and supervise the signing ceremony) is the safest bet.

And it may turn out that the Saskatchewan farmer was inadvertently on the cutting edge of the law of electronic wills. “In case I die in this mess, I leave all to the wife” is less than 140 characters. All he needed was a hashtag . . .

Same-Sex Marriages Under New Illinois Law Will Be Entitled to Equal Estate and Gift Tax Treatment

November 2013 is in the books, and it was a historic month in Illinois. On November 5 the Illinois legislature passed a bill legalizing same-sex marriage. Surprisingly, the Chicago Sun-Times deemed this significant event the second most important story of the day after the death of chef Charlie Trotter.

same sex Chicago estate planning

Oops.

How did the Chicago Tribune do?

same sex Chicago estate planning

Ahhhh, much better!

Governor Pat Quinn signed the bill on November 20. However, the bill does not take effect until June 1, 2014.

What does this have to do with estate planning?

The current state of the law is that same-sex married couples are entitled to the same federal tax benefits as heterosexual married couples. However, this does NOT apply to Illinois civil unions, because Illinois does not recognize a civil union as a marriage. After June 1, 2014, same-sex marriages will be entitled to the same federal estate and gift tax benefits as all marriages, including portability of the federal estate tax exemption and the unlimited exemption for gifts to a spouse. With equal access to these rules and proper estate planning, there is potential to significantly reduce a same-sex couple’s overall estate tax liability.

Side note: Even after poking fun above, I’ll forgive the Sun Times and assume that the story rankings on its mobile site are based on an algorithm—at least the paper didn’t put a picture of a random cat on its homepage.

Estate Planning For Your Embarrassing Personal Property

prsnlEarlier this month the New York Times published an article titled “The Sex Toys in the Attic.” The article proposes asking a trusted person—dubbed “The Eradicator”—to immediately remove the embarrassing items from your home after your death (or as a precaution, before you go into the hospital for surgery). This person is entrusted with the key to your home and the locations of the items to be destroyed. Such items include anything that may tarnish your memory in the eyes of your family and friends: journals, love letters from an old flame, or—how can I put this delicately—those “artistic” videos and the magazines you only read for the articles.

Of course, some may find this idea silly. After all, you aren’t around anymore to be embarrassed, so why should you care? But if you do decide there are items that need to disappear after you leave this world, exercise caution when selecting your Eradicator. First, if you have a falling out, your Eradicator may be tempted to remove those items prematurely while you are still living—and share the sordid details with the world. Second, in the case of items such as journals or letters that you don’t want anyone to read, this person must be trusted not to peek after you are gone, but to quickly and discretely dispose of the items, no questions asked.

Whether you find this idea ridiculous or indispensable, thinking about whom you would choose as your Eradicator is a great way to jump start the estate planning process. “Honey, you know the top drawer of our dresser—I don’t want the kids going through it if we both die . . . “ can be a light-hearted lead-in to more serious discussions about health care decisions, beneficiary designations, and guardians for your children.

Oh, and one more thing. If my Chicago friends are reading this and I’ve met an untimely demise—somebody please pick my clothes up off of the bathroom floor before my mother arrives in town.