Author: admin

It has been said that nothing ever dies on the Internet. While this dictum is typically used as a warning that what we put online may come back to haunt us, it is also true that our online accounts can outlive us, and even live in perpetuity. Having a digital estate plan that makes arrangements for what happens to these accounts when we die is essential. 

In modern estate planning, digital accounts such as PayPal, Venmo, and Apple Pay must be considered every bit as much as bank accounts, retirement accounts, and other traditional financial and payment accounts. Digital accounts can be conveniently closed upon the account holder’s death, provided they plan ahead. These types of accounts can still be closed without a digital estate plan, but not having an estate plan could make things harder for your loved ones. 

Closing a PayPal Account

Founded in 1998, PayPal was not the first company to offer online payments, but it was the first to obtain widespread adoption and is the top payment application among Americans today, with around three out of four respondents saying they are active users.¹ 

According to PayPal, only the authorized administrator or executor of a deceased person’s estate can take the necessary steps to close the decedent’s account.² These steps entail providing the following documentation to the company’s Deceased Account Team: 

• A cover sheet from the requestor identifying the primary email address associated with the PayPal account
• The requestor’s email address and a copy of their government-issued identification
• A copy of the account holder’s death certificate 
• Legal documentation, such as a copy of the will, identifying the estate executor

Once PayPal receives this information via email or physical mail, the requester will either be issued a check or given access to the deceased customer’s linked bank account to transfer the balance. PayPal will then close or lock the account. 

Closing an Apple Pay Account

Apple Pay is a relatively new player in digital payments but since launching in 2013 has seen rapid adoption and reportedly surpassed MasterCard recently in the dollar value of annual transactions.³

It is more appropriate to call Apple Pay a system rather than an app. CNET describes Apple Pay as the linchpin that makes digital iPhone payments possible using debit and credit cards, an Apple Card, or Apple Cash.⁴ 

Apple ID is the account used to access all Apple services, including Apple Pay. The company offers three ways to gain access to, and delete, a loved one’s Apple ID and associated data. The most burdensome way requires a court order that verifies the following information:⁵ 

• The deceased’s name and Apple ID
• The name of the next of kin requesting access to the decedent’s account
• That the decedent was the user of all Apple ID-associated accounts
• That the requestor is legally authorized to act on behalf of the decedent
• That Apple is required to provide access to the decedent’s account

The easier way for an Apple user to give someone access to their Apple ID is to add a Legacy Contact.⁶ This method involves an access key provided to a trusted person and a copy of the Apple ID account holder’s death certificate. Once inside the account, the Legacy Contact can delete the Apple ID.

Apple also allows someone with an Apple ID and the required legal documentation to permanently delete a deceased person’s Apple ID. Deletion requests are made on the Digital Legacy – Delete Apple ID page. 

Closing a Venmo Account

Venmo came out in 2009, and four years later was bought by PayPal. Users, which number around 80 million and are mostly based in the United States, can pay for goods and services in the Venmo app, transfer funds to friends, and receive direct deposits.⁷ The Venmo digital wallet, like PayPal, can be linked to a user’s credit card and bank account. 

The Venmo help center provides details about submitting a deceased customer notification for the Venmo Credit Card issued by Synchrony Bank.⁸ It links to a form that asks for the cardholder’s name, address, account number, and Social Security number, as well as information about the executor, next of kin, and requestor. 

The Venmo support team must be contacted for assistance with the cardholder’s Venmo account. Two options are provided on the help request form, one for customers who need help with their account and one for non-Venmo customers. There is also a place for adding attachments. This could include documents necessary to close out the account, such as a copy of the decedent’s death certificate and legal documentation authorizing the requestor to act on the decedent’s behalf. 

The Venmo support team can be reached at (855) 812-4430.

Avoiding Complications with a Digital Estate Plan

While Apple, PayPal, and other companies have automated systems for accessing or closing a deceased user’s account, some companies, like Venmo, are not so clear about how to access digital assets and may need to be contacted directly for assistance. 

A digital estate plan that contains account login credentials can speed up the process of settling online payment accounts. Login passwords can be stored in a password manager, such as 1Password or LastPass, and shared with family members for easy access. As an alternative, this information can be placed in a password-protected digital spreadsheet or handwritten list. 

• Regardless of the method, make sure that family members know how to access account logins. The digital estate plan should be regularly updated to reflect changes to login credentials. If a list of passwords is out of date, it will be effectively useless. 
• An account may require additional access information (e.g., a personal identification number (PIN) or two-factor authorization). Alongside usernames and passwords, be sure to list this information to provide full access. For example, two-factor authentication requires an associated phone number or email address. 
• The digital estate plan should also specify whether online payment accounts are linked to recurring bills so that automatic bill payments can be canceled. As part of settling the estate, payees must be contacted separately to settle any outstanding payments. 
• If an Apple Cash, PayPal, or Venmo account has a positive balance, that money can be transferred to an associated bank account; or, a digital estate plan can specify transfer of account ownership to an individual heir. PayPal allows ownership transfer of a business account; ownership of a Venmo group account be transferred; and Apple Card Family can have co-owners. Alternatively, the balance of a PayPal, Venmo, or Apple Pay account can be gifted to an heir. 

Ideally, a digital estate plan lists all devices and online accounts, instructions for accessing them (e.g., the associated email address, username, password, or PIN), and how to settle each account. 

If you do not want anyone to access your accounts after you die, then that can be part of your legacy, too. Just make sure everything is spelled out in detail through consultation with an estate planning attorney. 

Most states have adopted rules that govern how an executor, agent, or trustee can access a person’s online accounts when they die or become incapacitated. To take control of your digital estate in a way that conforms with your wishes—and the law—get in touch with our office and schedule a meeting. 

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Footnotes

1. Radovan Sekulic, How Many People Use PayPal in 2023?, Moneyzine (Feb. 27, 2023), https://moneyzine.com/personal-finance-resources/how-many-people-use-paypal/.
2. Help Center – Personal Account, How do I close the PayPal account of a deceased relative?, PayPal, https://www.paypal.com/us/cshelp/article/how-do-i-close-the-paypal-account-of-a-deceased-relative-help220 (last visited June 28, 2023).
3. William Gallagher, Apple Pay processes $6 trillion annually, edges out Mastercard, Apple Insider (Sept. 7, 2022), https://appleinsider.com/articles/22/09/07/apple-pay-processes-6-trillion-annually-edges-out-mastercard.
4. Katie Teague & Jessica Dolcourt, Apple Pay, Apple Card and Apple Cash: Disentangling the Payment Features Apple Wallet houses all three — but what do they do and how do they work together?, CNET (Mar. 29, 2022), https://www.cnet.com/personal-finance/credit-cards/apple-card-vs-apple-pay-vs-apple-cash-differences-you-need-to-know/.
5. How to request access to a deceased family member’s Apple account, Apple Support (Apr. 4, 2022), https://support.apple.com/en-us/HT208510.
6. How to add a Legacy Contact for your Apple ID, Apple Support (Sept. 12, 2022), https://support.apple.com/en-us/HT212360.
7. David Curry, Venmo Revenue and Usage Statistics (2023), Business of Apps (Feb. 13, 2023), https://www.businessofapps.com/data/venmo-statistics/.
8. Updating your Venmo Credit Card, Venmo Help Center (last visited June 28, 2023) https://help.venmo.com/hc/en-us/articles/360061172554-Updating-your-Venmo-Credit-Card-.

If you are thinking about creating an estate plan, you may hear some new and confusing terms that make your brain hurt. To add to your bewilderment, not only are some of the words unfamiliar, they may also be homophones—words that are pronounced the same as other words, but have different meanings and spellings. For example, an heir is a person who legally (under a will or according to state law) receives money or property from another person when that person dies. In contrast, air is an invisible gaseous substance made up primarily of oxygen and nitrogen that surrounds the earth. The two words sound alike, but obviously have vastly different meanings.

Likewise, if you have heard an estate planning attorney mention a devise, it is very different from a device—which usually refers to a piece of electronic or mechanical equipment. So exactly what is a devise in your estate plan? A devise is a legal term that traditionally has referred to a gift of real estate made by a will. However, in common usage, it has been used interchangeably with other legal terms such as a bequest, which traditionally refers to a gift made in a will of personal property—that is, property other than real estate. Courts will uphold the use of either term for a gift of real or personal property in a will if the will clearly shows that the person who created it (the willmaker) intended to make the gift. 

Types of Devises

There are several different types of devises: general, specific, demonstrative, and residuary. The distinction between them is important, so we will provide a definition of each type.

A general devise (or general bequest) is a gift made in a will that does not direct the transfer of a specific piece of property, but rather is a gift of a specified quantity or value that is to be made from any property of the same general type that is part of the willmaker’s estate. For example, if Ward leaves his sons Beaver and Wally each a gift of $10,000, those gifts are general devises, and the executor of Ward’s estate may pay out those gifts from any account or other source of funds that Ward owns.

A specific devise (or specific bequest) is a gift made in a will of a particular account, parcel of real estate, or other item that that the willmaker intends for a beneficiary to receive. The executor may only satisfy a specific devise by delivering that exact account or other item: the gift may not be made from any other accounts or items in the willmaker’s estate, even if the specific account mentioned no longer contains any funds or the item has been sold or destroyed. For example, if Fred’s will specifies that his Canopysaurus Flintmobile is devised to his daughter Pebbles, the executor can satisfy the specific devise only by transferring that exact vehicle to Pebbles.

A demonstrative devise (or bequest) has elements of both general and specific devises because it is a general gift but the will specifies that it is payable from a specified fund or source of property. For example, if Mario’s will specifies that he leaves his brother Luigi a gift of $25,000 but also directs that the gift should be paid from the funds in Mario’s Bank of Mushroom Kingdom savings account, he has made a demonstrative devise. Similarly, if Mario’s will provides Luigi a gift of any three plungers in Mario’s extensive plunger collection, this is a demonstrative devise.

A residuary devise is a gift of all property or money that remains in an estate after all of the specific, general, and demonstrative devises have been made and all expenses, debts, taxes, and any other obligations of the estate have been paid. Typically, a will includes a residuary clause naming a beneficiary who will receive any remaining money or property to ensure that nothing, even property the willmaker has forgotten they own, will pass according to the state’s default rules, which may not reflect the wishes of the willmaker. For example, Lord Grantham’s will could contain a residuary clause stating “I give all of the residue of my estate to my third cousin once-removed, Matthew Crawley. If Matthew Crawley does not survive me, I give all of the residue of my estate to my heretofore unacknowledged son, Thomas Barrow.”

Why Does the Type of Devise Matter?

You might be surprised to learn that the type of devise has very significant implications. A legal concept called ademption refers to the withdrawal or nullification of a gift made by a will because the property identified in the will is no longer in the willmaker’s estate. Ademption does not apply to general or demonstrative devises; however it does apply to specific devises where the property described in a will is no longer in the willmaker’s estate when they die. It does not matter whether the property was intentionally or unintentionally removed from the estate. For example, if Fred’s Canopysaurus Flintmobile is stolen and never recovered, it will obviously be impossible for Pebbles to receive it as part of her inheritance. In some states, the law does not permit the substitution of other property to replace the specific devise that is no longer available. So, if the Canopysaurus Flintmobile was a substantial part of Pebble’s inheritance, she may receive much less than Fred intended. Fortunately, some states have nonademption statutes that provide certain exceptions, so that, in our example, Pebbles could receive insurance proceeds that have not yet been paid to Fred at his death because the Canopysaurus Flintmobile was totaled in an accident or receive the unpaid proceeds if Fred sold the vehicle to Barney but had not yet received the amount owed before his death.

Another situation in which the type of devise matters is when an estate is not large enough to cover all the gifts made by the will, administration expenses, creditors’ claims, and other obligations it may owe. Under the law, the doctrine of abatement determines the order in which types of devises are reduced (or even eliminated depending on the circumstances). Generally, the residuary devise is reduced first, then general devises, then demonstrative devises, and lastly, specific devises. This amounts to a presumption under the law that the highest priority of an estate is to make specific devises and that the other types of devises are progressively lower priorities. So, if after administration expenses, creditors’ claims, and other obligations are paid, Fred’s Canopysaurus Flintmobile is the only property left in his estate, Pebbles will receive her inheritance—but no other beneficiaries named in Fred’s will would receive an inheritance, even if that was not his intention.

Let Us Devise an Estate Plan that Achieves Your Goals!

Wait—what? Yes, the word devise has yet another meaning that conveys the idea of carefully planning something out. Give us a call today so we can devise an estate plan that will ensure all of your loved ones receive the money and property that you wish to leave them in the amounts that you intend.

An individual’s belongings—such as jewelry, furniture, photographs, and books—sometimes slip through the cracks of their estate plan. While certain books may be gifted to a beneficiary in a loved one’s will, a book lover may leave behind other books that the family must decide what to do with. 

The family’s first inclination when encountering piles of old books might be to donate them to charity or throw them away. But getting rid of a book collection without first assessing it could be a mistake. 

Most books have little or no market value. Those that are not valuable to collectors, however, may have personal value. And a book collection could contain a hidden treasure or two, not only due to a book’s rarity but because of what is hidden in its pages. 

Books and the Residuary Estate 

Even with the most thorough estate planning, there is likely to be some personal property that is unaccounted for after somebody passes away. What remains after specific items have been distributed to loved ones and final expenses have been paid makes up the residuary estate.¹ 

A residuary estate can contain newly acquired accounts and property that were not accounted for in the latest draft of an estate plan. It can also contain overlooked items that, at least on the surface, seem to have nothing more than sentimental value. An old family Bible might be left to a close family member. The other books on the shelf, though, may be left in no-man’s-land. 

Most wills and trusts contain language specifying the disposition of the residuary estate. The language might state, for example, that any residuary estate goes to an individual family member, into a trust, or to charity. 

If the residuary language is general, such as “all my personal belongings are to be divided equally among my children,” it is likely that the children will have to decide what to do with leftover books and other personal belongings that they do not want to take with them. Going through a loved one’s belongings once they are gone can be an emotionally difficult process. Deciding what to do with their stuff is no less complicated. 

Decluttering experts recommend sorting items into separate piles based on whether the intent is to keep, throw away, sell, or donate them.² Items that are not kept can be sold in an estate sale. Estate sales are sometimes best left to companies that specialize in them. These companies are knowledgeable about pricing items for sale and can help ease the emotional burden of selling a deceased loved one’s property. It is important to ask for the company’s price up front and to get an estimate of the value of your items to avoid paying for the estate sale out of pocket if not enough items sell or not enough money is raised.

Assessing a Book’s (Monetary) Value

An estate sale company may advise the family that a book in the collection is valuable, or a particular volume might stand out while decluttering. 

Maybe the book is old, written by a well-known author, or has a distinguishing physical characteristic, such as striking illustrations or the author’s signature. Perhaps it is just a hunch that a book is worth setting aside and learning more about before being consigned to an estate sale—or the dustbin of family history. 

Age alone does not make a book valuable. Nor does the rarity of a book. Many millions of books have been published since the invention of the printing press. Most are about as valuable as the paper they are printed on. Only a tiny fraction have real value to book buyers. 

According to Nelson Rare Books, three elements determine book value³: 

• rarity
• scarcity
• condition

A book that has some or all of these characteristics is not necessarily worth a lot of money. Some books are old, scarce, and in fine condition but still not valuable. A book could have a lot of copies in print, but have another distinguishing characteristic, such as a signature, inscription, or notes in the margin from a famous former owner, that makes it rare. 

First editions of books (i.e., first printings) tend to have higher value than later editions. However, the rarity, scarcity, and condition of a book notwithstanding, a book that is not in demand will not have a strong resale market. 

Among first editions, some books stand out as true collectible gems. The books on this Reader’s Digest list can fetch $50,000 to $5 million or more. To gauge the value of a book, you can visit websites such as Biblio.com or AbeBooks and fill in the search box information fields. 

Keep in mind that, even if a book appears to have a strong market, it could take months or even years to find the right buyer. Ultimately, the value of a book is whatever someone is willing to pay for it—not what an online resource says it is worth. 

Hidden Surprises in Books

A book without intrinsic value can have something valuable concealed within its pages. Some of the hidden treasures found in old books include a lock of George Washington’s hair, an original C.S. Lewis letter, a map of Middle Earth annotated by J.R.R. Tolkien, and a winning lottery ticket worth $750,000.⁴ Other people have found cash, collector’s items, and other surprises between the pages.⁵ 

The artifacts left behind in books might lack financial or objective historical value but have subjective value to family members. Items like handwritten notes, photographs, coupons, receipts, and tickets can be placed in a family scrapbook as a unique and tangible reminder of someone. For inspiration, check out this project started by a librarian at the Oakland Public Library for collecting forgotten mementos in books. 

Keeping Books for a Personal Collection

The typical US household has more than one hundred books.⁶ The odds of any one book being valuable enough to sell to a collector are very low. Yet a book that is virtually worthless as a historical artifact can still have family or personal significance. 

Some books have been in a family for generations and can continue to be passed on. Maybe a mother owned a copy of The Night Before Christmas and read it each Christmas Eve to her children. One of the children might want to keep the book and carry on the tradition, eventually passing the book on to their own kids. 

A book could also have an inscription that imbues it with sentimental value. Or it might simply be a favorite book of a loved one that they always had near at hand. There are countless reasons why a book might take on emotional dimensions. If it resonates with just one person, this alone gives it significance. 

Love of books is often inspired in childhood. Having books in the home is a strong predictor of a lifelong reading habit. The child or grandchild of a book lover might themselves be a book lover. For them, the books might have value in and of themselves, absent any monetary or nostalgic considerations. 

Gifting Books and Other Personal Items in an Estate Plan

Gaps in an estate plan can lead to conflict among surviving family members. Estate plans tend to focus on big-ticket items like houses, cars, bank accounts, and investments. But deciding who is entitled to personal mementos—especially valuable ones—can be an underestimated source of contention. 

Verbally promising personal property to a loved one will probably not pass legal muster or satisfy your loved ones who feel left out. To avoid conflicts over personal belongings, consider incorporating them into an estate plan. This can be accomplished with a document called a personal property memorandum. Personal items can also be given away while a person is alive, leaving no doubt about ownership. 

Small estate planning details can make a big difference. The more specific you can be in your estate plan, the better. To ensure that you are not leaving out anything important, contact our office to schedule an appointment.

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Footnotes

1. Residuary Estate, Legal Info. Inst., https://www.law.cornell.edu/wex/residuary_estate (last visited May 30, 2023).
2. How to Declutter a Loved One’s Personal Belongings after Death, The Simplicity Habit, https://www.thesimplicityhabit.com/how-to-declutter-personal-belongings-after-death/ (last visited May 30, 2023).
3. Is This Book Valuable?, Nelson Rare Books, https://www.nelsonrarebooks.com/is-this-book-valuable.php (last visited May 30, 2023).
4. Jake Rossen, 5 Amazing Things Found in Old Books, Mental Floss (Feb. 12, 2020), https://www.mentalfloss.com/article/616989/amazing-things-found-old-books.
5. Sarah Laskow, The Best Things Found between the Pages of Old Books, Atlas Obscura (Feb. 15, 2018), https://www.atlasobscura.com/articles/surprising-discoveries-pages-old-books.
6. Robby Berman, This Is How a Bookish Home Helps a Child to Thrive, World Econ. F. (Oct. 17, 2018), https://www.weforum.org/agenda/2018/10/a-home-library-gives-kids-a-major-advantage.

If you have recently lost your job, you are not alone! Inflation has skyrocketed in the United States over the past couple of years. Some smaller businesses have not been able to survive the increased expenses, putting employees out of work, while many larger companies have laid off employees to reduce their costs. If you are dealing with a job loss, you can transform what you may view as a crisis into an opportunity to take steps to protect yourself and your family.

1. Take a Hard Look at Your Financial Situation

Try not to dwell on the loss; rather, focus on planning for the future. In planning proactively to address both the immediate crisis and your long-term financial wellbeing, it is important to assess the state of your finances. Do everything you can to maximize your resources and minimize your expenses.

Keep in mind that some resources may be available if you were laid off through no fault of your own. Some employers may provide a severance package, and in many cases, unemployment benefits are available for a limited period to tide you over until you find a new job. Depending on state law and your former employer’s policy, a payout of accrued vacation and sick leave may also be a source of liquidity that can sustain you for a while.

In addition, create a list of everything you own and their values. Some assets—i.e., accounts and property—are more easily converted to cash than others, and as a last resort, those assets could be liquidated and the proceeds used for living expenses. Your list should include your checking and savings accounts, investment accounts, retirement accounts, cars, boats, and real estate. If you have an emergency fund, you can rely on those funds first. Keep in mind that withdrawals from checking and savings accounts have no tax consequences. That is not the case for every type of account: if you liquidate a portion of an investment account that has appreciated over time, you may have to pay taxes on any capital gains (the rate may be up to 20 percent, depending on your income and how long you have had the investment). Drawing cash out of a retirement account may result in even more tax liability (depending on the type of account and the amount withdrawn), as the amount withdrawn may be taxed as ordinary income, which could mean a rate much higher than the capital gains rate, and it may be subject to a 10 percent penalty. 

You should also create a list of your debts and expenses. This will provide you with a fuller picture of your financial situation. If you have expenses that can be temporarily eliminated—subscriptions for streaming services, cable television, yard or house cleaning services, and other luxuries—it is smart to do so sooner rather than later. You can easily reestablish those services if you find another job quickly, but if you continue to spend money on such items, you will have less money available in the future if your job search lasts longer than you anticipate. You can figure out creative ways to live on less (and you may decide you want to continue doing so even after you land a new job!). If you do not already have a monthly budget, create one that will help you minimize your expenses.

You may also be able to work with creditors if you think you will miss a payment or need to make a reduced payment temporarily. They will prefer getting a partial payment rather than no payment, and most will be open to working with you as you look for a new job. However, this may have a negative impact on your credit rating, and you may have to make an effort in the future to increase your score.

2. Update Your Estate Plan

Although you may think about updating your estate plan when your life circumstances change in a positive way—for example, getting a higher-paying job or having a child—you should also update your estate plan when you experience negative changes, such as losing a job. If your life insurance policy was provided by your employer, it will generally terminate when you leave your job. If, for example, you named your trust as the beneficiary of your life insurance policy and were relying on those funds to provide for your loved ones, you may need to review your estate plan and make changes to how much everyone will receive. Similarly, if you have dipped into your savings account to cover your expenses during your period of unemployment and you have an insurance policy not provided by your former employer, you may want to name both children as beneficiaries of the insurance policy instead of naming one as the beneficiary of the insurance while leaving the diminished savings account to the other.

3. Create an Estate Plan

If you do not already have an estate plan, gather your lists of accounts and property, and meet with an estate planning attorney to create a basic estate plan to protect yourself, your family, and your property. Your attorney will ask you to provide your financial information to prepare for the estate planning consultation. An estate plan can protect your accounts and property by minimizing expenses and taxes—leaving more for your family—while also making sure your wishes are followed. 

Without an estate plan, state law determines who will inherit your property and accounts. A will or trust enables you to choose your beneficiaries and what you want each one to inherit from you. Certain types of trusts can protect your assets from creditors if the trust is established before any creditors’ claims arise. You can also specify in your will or a separate document who you would like to be the caregiver of your minor children if you are too sick to care for them or if you pass away. Your estate plan should also include important documents such as powers of attorney to authorize individuals you trust to make medical or financial decisions on your behalf if you are unable to do so and a living will to provide guidance about how you want things to be handled if a medical crisis occurs.

Most importantly, an estate plan provides you and your family with the peace of mind of knowing that if anything happens to you, they will not have to deal with the possibility of family conflicts and difficult decisions during an already stressful time. An estate planning attorney can help you create a basic plan that you can afford now; and, if you choose, you can add to your plan once you have found a job. We are here to help, so please give us a call to schedule a consultation. 

The online marketplace Etsy has gone from a niche craft seller to one of the largest commerce companies in the world. Etsy has millions of active sellers worldwide, most of whom are based in the United States. Many Etsy sellers rely on the site as a primary or secondary income stream. Collectively, they contribute billions of dollars per year to the US economy. 

Etsy sellers tend to be independent workers who seek success on their own terms. But you should have a contingency plan for your Etsy store that considers the worst-case scenario of incapacitation or death. Ask yourself: what would happen to your store if you were no longer able to run it? 

Whether it is a primary income source or a side hustle, an Etsy store is part of your legacy and deserves a place in your digital estate plan alongside other digital assets like social media accounts, subscription services, and cryptocurrency. 

The Etsy Phenomenon

Etsy was founded in 2005 as GetCrafty.com, an online community geared toward female craft makers. Forum users frequently commented that they wished there was an e-commerce site that allowed them to buy and sell the things they made.¹ The inspiration to create an eBay for handmade goods led to the Etsy platform, which in 2022 boasted 7.5 million active sellers, 95 million active buyers, more than 100 listed items, and $13.3 billion in gross merchandise sales.² 

Since going public, some sellers have complained that the company has strayed too far from its do-it-yourself roots. But even as Etsy becomes more of a sales-driven machine, it still serves as an on-ramp for entrepreneurs who might not have started a business otherwise. This was particularly true during the COVID-19 pandemic when Etsy’s business—and stock price—soared to new heights. 

Etsy states in its 2021 Seller Census that its sellers reflect the changing nature of work. More than half of them do not work in traditional, full-time employment, and about three-quarters combine income from multiple sources³: 

• Etsy sellers in the United States are overwhelmingly female (79 percent) and college educated (55 percent).
• The average age of a seller is forty-five years old.
• For 29 percent of sellers, their creative business, both on and off Etsy, is their sole occupation. For about 10 percent of sellers, Etsy provides supplemental income. 
• Around one-quarter have children at home. 
• Most (81 percent) are businesses of one that operate from home (96 percent). 
• Approximately one-third of sellers use income from Etsy and other creative businesses to cover household expenses. 
• On average, their sales increased 34 percent from 2019 to 2021. 

Overall, Etsy stores generate nearly $3.8 billion in US household income and contribute $14.3 billion to the US economy, says Etsy.  

Etsy Incapacity Planning

Etsy sellers who depend on income they receive from the platform are vulnerable to many different types of disruptions. Some sellers respond to a disruption by putting their shop in vacation mode, a setting that lets a shop place itself temporarily on hold. Vacation mode can be helpful for getting through an illness or other short-term disruption, but sellers should also have a plan for a longer period of incapacity, as a shop paused in vacation mode is unable to generate sales. A guide to using vacation mode is available here. 

With an average age of forty-five, Etsy sellers may not be thinking about mental or physical incapacity. In their 30s, 40s, and 50s, however, workers are far more likely to become seriously disabled than they are to die. And most people vastly underestimate the odds of becoming disabled in their working years.⁴ 

Etsy’s census figures show that sellers are overwhelmingly solo entrepreneurs. This can make them even more vulnerable to disability since they do not have employer-provided disability insurance. 

A seller who is incapacitated may not be able to pause their Etsy shop. And they may want the business to continue during a period of incapacity, especially if they have dependents. This is why it is crucial to have an estate plan that covers online marketplace stores and allows a trusted individual to take the following actions: 

• access an Etsy account
• activate vacation mode
• pay subscription fees
• ship items
• issue customer refunds
• edit listings
• list new items
• run Etsy ads

Be aware that Etsy does not allow account transfers.⁵ In addition, it allows only one user, password, and email per shop, so a seller cannot add a person to manage their shop. Sharing credentials is not technically against Etsy’s seller policy. The site allows sellers to use third-party workers, as long as the arrangement does not violate its seller policies.⁶ Share credentials wisely, because whoever has access to an Etsy shop has access to the seller’s personal information, including finances. 

Etsy strictly enforces its account transfer policy and reserves the right to suspend an account, without notice, if it believes the policy has been violated.

Sellers with questions can contact Etsy directly on their dashboard, under Community & Help. The company’s legal team can be reached at legal@etsy.com. 

Closing or Selling an Etsy Store

Prolonged or permanent incapacity may lead to the tough decision to close or sell the shop. Etsy provides step-by-step instructions for closing a shop here. 

An Etsy shop may also need to be closed if the seller dies. This possibility can be addressed in an estate plan by providing Etsy account credentials. In addition, the Etsy Help Center provides account closing assistance to estate executors and next of kin authorized to act on behalf of the deceased.⁷ 

While it is possible to sell a business run on Etsy to someone else, the new buyer would need to open a new Etsy account and shop. The same is true of an Etsy-run business left to a beneficiary in an estate plan. The recipient would need their own Etsy shop to continue the business. Keep in mind, too, that the owner of the new shop could not sell the original owner’s work, per Etsy’s policy that items must be handmade by the seller. 

Etsy rules also state that each shop can have only one owner. Community forum discussions have explored the option of setting up the shop as a legal partnership, with both partners on the same banking accounts. In this case, even if one partner died, there would be no transfer of ownership, as both partners are already owners.⁸ Other sellers maintain that, as far as Etsy is concerned, only one person can legally take ownership of the shop, even in the case of a partnership.⁹ 

Do Not Neglect Your Digital Estate Plan

As more of our lives take place online, it is increasingly important to have a plan for our digital assets. Laws and regulations pertaining to data and digital assets continue to evolve. It may be necessary to craft a plan for each digital asset or account, depending on what company holds the account and their respective policies. 

In our digital era, an estate plan that does not account for digital assets is incomplete. Loved ones may not be able to access these accounts or receive benefits from them, and they could be lost forever. During a meeting with our estate planning attorneys, we can prepare a list of your digital assets and devise a plan that gives your heirs access to them while meeting data privacy laws. Any questions about specific assets, like an Etsy store, can be addressed at this time. 

To start planning today, call or contact our office.

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Footnotes

1. Alexis Gebhardt, How an Etsy Founder Turned Ice Cream Maker Feels about the E-commerce Giant Today, CNBC (Apr. 20, 2022), https://www.cnbc.com/2022/04/19/how-etsy-founder-feels-about-the-e-commerce-platform-as-sellers-strike.html.
2. Key Figures, Etsy: Investor Relations, https://investors.etsy.com/overview/key-figures/default.aspx (last visited May 30, 2023).
3. Global Etsy Seller Census, Etsy (2020), https://s22.q4cdn.com/941741262/files/doc_financials/2021/q1/v2/GLOBAL-COMPILED_2020-Etsy-Seller-Census_DIGITAL-(1).pdf.
4. Richard Reich, Disability Facts and Statistics, LifeInsure.com, https://www.lifeinsure.com/disability-facts-and-statistics/ (last visited May 30, 2023).
5. Can I Transfer My Etsy Account to Someone Else?, Etsy Help Center, https://help.etsy.com/hc/en-us/articles/360040985353-Can-I-Transfer-My-Etsy-Account-to-Someone-Else-?segment=selling (last visited May 30, 2023).
6. Hiring Freelance Administrative Help, Etsy: Our House Rules (Dec. 18, 2018), https://www.etsy.com/legal/policy/hiring-freelance-administrative-help/243317690157?ref=list.
7. Deceased Members, Etsy: Our House Rules (Apr. 23, 2021), https://www.etsy.com/legal/policy/deceased-members/239384514748?ref=list.
8. Dizhasneatstuff, Planning My Estate and My Etsy Shop, Etsy Community: Etsy Forums (Mar. 22, 2021, 7:17 PM), https://community.etsy.com/t5/Managing-Your-Shop/planning-my-estate-and-my-Etsy-shop/td-p/133533231.
9. 2MagpieGarage, How to Add an Equal Partner to My Shop, Etsy Community: Etsy Forums (Mar. 5, 2019, 3:33 PM), https://community.etsy.com/t5/Managing-Your-Shop/How-to-add-an-equal-partner-to-my-shop/td-p/125477493.

Joint trusts are beneficial for many married couples, especially if they have a stable relationship, do not have many creditors, and do not live in a state where their estate may be subject to a state death tax. Compared to separate trusts, they are easier to fund, allow the surviving spouse to have complete control over the money and property held in the trust, and may help avoid much higher trust income tax rates that are applicable to their spouse’s separate trust after their spouse dies.

If you are in a long-term relationship with your partner but are not married, you may want to take advantage of these benefits. However, joint trusts typically are not a good option for unmarried couples. This may not seem fair, but there are some important reasons why unmarried couples should consider separate rather than joint trusts.

Gift Tax Consequences

Under federal tax law, married couples benefit from an unlimited marital deduction that allows them to make an unlimited amount of gifts to their spouse, during their lifetime or at death, without incurring estate or gift taxes. This benefit is not available to unmarried couples, regardless of the longevity of their relationship and level of commitment to each other. As a result, if an unmarried couple forms a joint trust, they must be careful to ensure that each partner contributes money and property that is already jointly owned or is precisely equal in value. If one of the partners contributes property of greater value to the joint trust, that partner may be considered to have made a taxable gift to the other partner. To avoid this result, the money and property each partner transfers to the joint trust must be carefully divided into separate shares, in effect, creating two separate trusts within one trust agreement. The burden of creating these separate shares in a joint trust may outweigh its benefits. 

In addition, to prevent transfers to the trust from being considered a completed (and therefore taxable) gift under the federal tax code, the trust document may need to include provisions that allow either partner to revoke the trust instead of requiring joint action by both partners.¹ One or both partners may find this type of provision unattractive.

Income Tax Consequences

Joint trusts are typically used for married couples who file joint income tax returns because either spouse’s Social Security number can be attached to property or accounts held by the trust that are producing income. Revocable trusts, which are commonly used by married couples during their lifetime, are grantor trusts: for federal income tax purposes, the person or couple who creates a grantor trust is considered the owner of the accounts and property held by the trust. This means that the income produced by the trust is reported by the married couple on their joint income tax return rather than a separate income tax return filed on behalf of the trust. Either spouse’s Social Security number can be used as the tax identification number for the trust, and the property and accounts held by the trust can be associated with either spouse’s Social Security number. 

Federal tax law does not allow unmarried couples to file joint tax returns, so each partner must file separate returns reporting income from their respective share of the trust. This makes reporting much more complicated for a joint trust operating under one partner’s Social Security number or a separate tax identification number, and it sets the couple up for trouble stemming from inaccuracies on their tax returns.

What Are Some Alternatives?

Separate trusts. To avoid the complications that will likely arise if an unmarried couple establishes a joint trust, each partner could form a separate trust funded with some or all of their money and property. A trust allows the property and accounts to be transferred to the named beneficiaries according to its terms, and it avoids probate at death. Each partner can be a trustee for their own trust and can choose a co-trustee or successor trustee to manage their affairs during their lifetime if they become incapacitated. In addition, they can name anyone they choose to be their beneficiary, including their partner, and can specify the property and accounts that should pass to them. 

Note: Keep in mind that if you and your partner transfer jointly owned property to a trust, it will no longer be jointly owned because the trust will be the sole owner of the property or accounts. The trust’s terms will determine who will ultimately receive it.

Joint ownership. There are a couple of ways that unmarried couples may jointly own their accounts and property. The method the partners choose will depend on whether they want the surviving partner to receive full ownership of the account or property when one of them dies. Generally, if they hold the accounts or property as joint tenants with rights of survivorship, the surviving partner automatically and immediately becomes the full owner when one of them passes away—without going through the probate process. Typically, neither partner can transfer the property or obtain a mortgage on it without the other’s consent.

However, if the couple owns property or accounts as tenants in common, the deceased partner’s share will become part of their probate estate and will pass according to the terms of their will, or in the absence of a will, to the heirs specified by state law. Each of the tenants in common may freely transfer their interest in the property, so it is often a less desirable option than a joint tenancy with a right of survivorship. Unless the deceased partner’s will provides that the surviving partner should inherit their interest, the surviving partner could end up co-owning property (including a residence!) with someone they may not have chosen.

We Can Help You Plan Ahead

Although some states provide protections for couples who have registered as domestic partners or civil union partners, state law generally does not protect unmarried couples when one of them passes away without an estate plan. Instead, the next of kin set forth in the state’s intestacy statute will inherit all of their money and property, and the surviving partner will receive nothing. Contact us today so we can help you create the best plan for your unique situation aimed at providing for your needs during your lifetime and ensuring that your partner’s future is secure if something happens to you.

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Footnote

1. Treas. Reg. § 25.2511-2(b) (as amended in 2020) (a gift is complete if the donor retains no power to change disposition of the property); see id. § 25.2511-2(e) (a donor would not retain the power to revoke a gift if the right to revoke is only exercisable jointly with a person who has a substantial adverse interest, and thus the gift would be complete).

You have a minor child who depends on you for their survival, so you need to make sure that they will be cared for if you are ever unable to care for them. By creating an estate plan, you can address your minor child’s care and custody and provide instructions about how your money and property should be used for their care should something happen to you. 

Care and Custody of Your Child

Creating an estate plan allows you to name someone to care for your minor child if you are unable. A child under the age of majority (eighteen or twenty-one depending on your state law) cannot legally care for themselves (unless they have been emancipated). A guardian must be appointed to take care of the minor child if both parents have passed away or are unable to care for the child. It is important to note that if the other legal parent is still alive, that parent may receive custody of the child. However, you need to have a plan in case there is no other legal parent or the other legal parent cannot care for the child. If you do not choose a guardian, the judge will look to state law to determine the appropriate guardian, who may not be the person that you would have chosen. 

How do you nominate a guardian?

There are a few different ways to nominate a guardian to care for your child after your death. First, it can be done in a last will and testament (also known as a will). In this document, you can name someone to be your child’s guardian after your death, a person to wind up your affairs (executor or personal representative), and people to receive your money and property, along with any instructions. Similarly, you may use a pour-over will to name a guardian for your child upon your death. A pour-over will also allows you to name your trust as the beneficiary of any money and property that goes through the probate process. Lastly, some states have a separate document that allows you to nominate a guardian for your minor child. Some people prefer the separate document because they can change guardians without having to update their entire will or pour-over will. 

How do you name someone to step in when emergencies arise?

While an estate plan usually focuses on planning for your death, it is also important to plan for the situation in which you are alive but unable to act or make decisions (called being incapacitated), including naming someone to temporarily care for your child. In addition to delegating your parental authority when you are unable to act, this document can be used if you are traveling and need someone to make decisions for your child. It is important to note that this document is only effective for a short period (six months in some states), and your chosen person cannot agree to certain actions, such as the child’s adoption or marriage. 

Rules for Your Child’s Inheritance

Who will be in charge?

A minor child cannot handle their own financial affairs (unless they are emancipated); they need an adult. If you pass away without an estate plan, the other legal parent may be in charge of managing the money and property you have left to your child. If the other legal parent is unable to manage your child’s inheritance, then the court will have to appoint someone. An estate plan allows you to name the person you want to control the money and property. Without an estate plan, the judge can only use state law and the people who appear in court to determine who will manage the inheritance. 

When and how will your child receive their inheritance?

If you do not have an estate plan, your child’s inheritance will be managed for their benefit until they reach the age of majority, and then it will be given to them outright. Although they will be a legal adult, they may not be prepared for a large influx of money and property. Also, you may have certain things that you want the money to be used for. With a trust, you can draft instructions for exactly how you want the inheritance to be used. You can create a revocable trust or include these instructions in your will (known as a testamentary trust). The important distinction between these two options is that a will has to be filed with the probate court, and the proceedings will be public and overseen by a judge. A properly drafted and funded revocable trust, on the other hand, can be managed without probate, and no documents need to be made public.

There are many options available to you when crafting instructions for how your child’s inheritance should be managed and distributed. Your minor child can receive a percentage upon reaching a specific age (e.g., 50 percent at thirty years old and the remainder at fifty years old). You can also structure your child’s trust as an incentive trust to allow the trustee to give your child money only after they meet certain goals (e.g., successfully completing postsecondary education, being sober for one year). Alternatively, you can leave the decision of how and when to give out the funds exclusively up to the trustee’s discretion. This is sometimes referred to as a discretionary trust. Because your child will not be guaranteed a specific amount of money or piece of property, the funds will be better protected from any future creditors or divorcing spouses that your child may have. However, when deciding to use a discretionary trust, it is important to choose your trustee wisely and provide clear guidelines for the trustee to consider.

When considering who to select as the trustee of your minor child’s trust, you can choose a family member who knows your child and understands your wishes. If you do not have family that you would like to fill this role, you can look to your close friends. These people may already be a large part of your child’s life and may understand your wishes. Lastly, if you do not have someone who you would want to serve as a trustee, you can hire a professional trustee, though be aware that professional trustees charge for their services. While all trustees are entitled to compensation, a professional trustee may be more expensive and have set fees.

Although state law will provide your child with a guardian, someone to manage their inheritance, and a distribution plan for their inheritance, this is the least desirable result. You have the power to design an estate plan that is unique to your child’s circumstances and allows you to choose the most trusted individuals to guide them if you are no longer able to. We would love the opportunity to help you create the best plan for you and your child or to update your existing plan. Call us to schedule an appointment.