Category: Estate Planning

When you create a trust, choosing a trustee is one of the most important decisions you will make. If you create a revocable living trust—that is, a trust that you establish during your lifetime and can revoke or amend—you may opt to act as trustee for your trust, retaining the full control over and benefit of the money and property it holds. However, what happens if you develop a health issue or are injured in a car accident and are unable to manage your own affairs? With today’s longer life expectancies, it is much more likely that you will experience dementia in your later years, making it impossible for you to handle your own finances. And what will happen when you pass away? It is crucial that you name a successor trustee (and an alternate in case the first successor is unable or unwilling to serve) who will step into the role of trustee to manage the trust on your behalf if you become incapacitated or die. 

There are certain characteristics you should look for in any trustee. They should be trustworthy and responsible, capable of making wise financial or investment decisions, and interested in carrying out your wishes as expressed in your trust document. Depending on your particular circumstances, it may be prudent to name different trustees to serve at your incapacity and at your death. On the other hand, some may prefer to have the same trustee serve in the event of both incapacity and death.

Different Trustees at Incapacity and Death

During Incapacity

During your lifetime, you are typically the beneficiary of your revocable living trust, so you may prefer to have a spouse, child, or other close relative serve as your trustee if you become incapacitated. Not only will they have a legal duty to act in your best interest, they are also among the people who know you and your needs best, love you, and understand your wishes. They will have your best interest at heart and will ensure that your affairs are handled in a way that is most beneficial for you. Another possible benefit is that, although a family member who serves as trustee is entitled to charge a reasonable fee for the work they perform in that role, they may forgo compensation. Importantly, because there often are no other trust beneficiaries during your lifetime, there is no risk that a trustee who is also a family member will show or be perceived as showing favoritism or partiality between beneficiaries.

Tip: You should consider naming the same person you have chosen to act as your agent under a financial power of attorney as your trustee. While your trustee will manage the money or property held in your trust, your agent under a financial power of attorney is typically authorized to manage nontrust property, pay bills, enter into contracts, or engage in other financial transactions on your behalf. You may choose to make the financial power of attorney effective immediately, or in some states, only upon a determination that you have become incapacitated. In any case, the person you choose to act as your agent will need to meet the same criteria you should use in naming a successor trustee: your agent should be someone you know is honest, reliable, and capable. 

At Your Death

When you pass away, you are no longer the beneficiary of your trust. Instead, the trust’s beneficiaries are the individuals or organizations you have designated in your trust document to receive distributions from the trust after your death. Other considerations may come into play in choosing who will serve in the role of trustee at that point. For example, if you name your spouse or child as your successor trustee, it may be difficult for them to take on the responsibilities of that role at a time when they are grieving and distraught. 

In addition, if there have been any family rivalries or disharmony, naming one of the children as trustee may create tension, as the other children may suspect that the child who is trustee will not carry out their duties in an unbiased way. These tensions could also occur in blended families. For example, if you have children from both your previous and current marriage and you name your current spouse as trustee, your children from your first marriage may suspect that they will not be treated fairly. This situation could even lead to disharmony for families who have always gotten along well in the past.

To avoid family squabbles, you may want to name someone whom you can count on to act fairly and impartially—perhaps a good friend, a trusted business associate, or a professional trustee—to act as your successor trustee upon your death.

Same Trustee at Incapacity and Death

If you think there is little risk of family disunity, you may opt to have the same person serve as successor trustee during your incapacity and at your death. There are some definite benefits to this approach. First, if only one person will serve as your successor trustee, less preparation is necessary for the occurrence of either circumstance: instead of bringing two individuals up to speed on your affairs, you only need to involve one person who knows they are next in line to serve as trustee. Having one individual serve as successor trustee will avoid the need to transition from one trustee to the next if you become incapacitated before your death, making management of the trust more seamless. Because the trustee will already be in that role, there will be no sudden need for them to assume a new, potentially stressful role when you die.

We Can Help

Determining who will serve as your successor trustee is a crucial decision when you create your estate plan. Whether you need to decide between having the same trustee or different trustees at your incapacity or death, to name more than one trustee, or to appoint a professional trustee, we can guide you to make the best choice for your particular situation. Our aim is to help you achieve your goals and avoid conflict in your family after you pass away. Call us today to set up an appointment so we can advise you as you make this and other important decisions about your estate plan.

Adding a payable-on-death (POD) or transfer-on-death (TOD) designation to an account allows the assets (money and property) in that account to be passed to a named beneficiary when the original account holder dies. 

Like trusts, POD and TOD accounts bypass probate. They are also fast, easy, and usually free to set up. However, they do not provide the full range of benefits that a traditional trust does and can have some unintended consequences. 

Before deciding whether to set up a POD or TOD account, it is important to know the difference between them, understand their pros and cons, and talk to an attorney about how they fit into your estate planning goals. 

POD versus TOD (versus a Trust)

Payable on death and transfer on death sound ominous; and while the topic of death is always somewhat gloomy, POD and TOD are estate planning terms that financial account holders should be familiar with. 

A goal of most estate plans is to avoid probate—the legal process by which an estate is settled. Probate can be time-consuming and costly, but there are ways to avoid it, such as placing assets in trusts that pass outside of probate. 

Another way to avoid probate is to use POD and TOD accounts for asset transfers. The major difference between POD and TOD accounts is the type of assets held in the account. 

• POD is a designation added to a bank account, such as a checking account, savings account, certificate of deposit (CD), and money market account. 
• TOD applies to an investment account, such as an individual retirement account, 401(k), brokerage account, and other accounts holding securities. 

An additional difference between POD and TOD accounts is that, with a POD designation, the account assets are transferred to a beneficiary (or beneficiaries), while with a TOD designation, account ownership transfers to a beneficiary. 

Financial institutions may refer to a POD account as a Totten trust, a type of revocable trust (aka a living trust) that is set up as a POD account. PODs and TODs are, like Totten trusts, able to be revoked during the owner’s lifetime; that is, the POD or TOD designation can be removed up until the owner passes away. And with all three, while the owner is alive, they retain account ownership and can manage the account as they see fit. It is only when the owner dies that the beneficiaries have a claim to a TOD, POD, or revocable trust.

However, unlike a Totten trust or a revocable trust, there is no trustee who manages a POD or TOD account. The POD or TOD account or assets transfer directly to the beneficiary. Assets transferred in this way have no protection from a beneficiary’s creditors or their poor spending habits. 

Pros and Cons of PODs and TODs

It is important to note that, in the case of jointly held accounts, a POD or TOD account designation does not kick in until both account holders have passed away. For example, if spouses jointly own a bank account that is set up as a POD account, the surviving spouse becomes the sole owner of the account when the first spouse dies, and it only passes to named beneficiaries after the surviving spouse dies.

Others benefits may include the following: 

• Setup is straightforward and there is generally no cost. 
• Designated beneficiaries receive the funds without having to wait for probate to conclude, which can take months. A POD or TOD account allows loved ones to get money almost immediately. Typically, all they need to provide is the death certificate and identification to the account-holding institution. 
• A bank account has Federal Deposit Insurance Corporation (FDIC) insurance up to the standard $250,000, but banks allow account owners to specify multiple unique beneficiaries for an informal revocable trust (i.e., a POD account), which provides additional FDIC coverage.¹ 
• The account owner has the flexibility to change, add, or revoke a beneficiary designation. 
• For added flexibility, a durable power of attorney can be added to a POD or TOD account, allowing somebody other than the beneficiary to handle the account. 
• Trusts can also be named POD beneficiaries.² 

The probate avoidance offered by a POD or TOD account is its main appeal, but this and other benefits should be weighed against the following potential pitfalls:

• A POD or TOD account is not effective if the owner becomes incapacitated. 
• Backup beneficiaries cannot be named, so if a beneficiary predeceases the account owner, their share of the account could be automatically reallocated to the remaining surviving beneficiaries or subject to probate. 
• POD and TOD accounts are established through a financial institution and outside the rest of the estate plan. If a will is updated but POD or TOD beneficiaries are not, there could be inconsistencies in the overall estate plan. 
• Because POD bank accounts avoid probate and pass outside of the estate, the funds in them are not available to settle claims or debts of the estate, such as estate taxes. This can make things harder on the executor, who may need to ask for voluntary contributions from a POD beneficiary. 
• If there are insufficient probate assets to pay the debts of the estate, creditors may be able to claim certain nonprobate assets, including POD and TOD accounts. 

Is a POD or TOD Account Right for My Estate Plan? 

An estate plan is a highly individual matter that reflects your personal wishes and family dynamics. As such, there is no “one size fits all” advice for an estate plan. The pros and cons of any estate planning vehicle—be it a POD, TOD, revocable trust, will, or power of attorney—must be weighed against your values and goals. 

Transferring a bank account to a POD account, or an investment account to a TOD account, may be as easy as signing a document with your financial institution. But the ease of a POD or TOD designation must be considered alongside fiscal considerations such as taxes and personal considerations such as whether heirs would be better served by placing the accounts in a trust. 

During a meeting with our estate planning attorneys, we can discuss POD and TOD accounts and how they may align with your overarching estate planning objectives. Call or contact us to start planning today.

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Footnotes:

1. Your Insured Deposits, FDIC (Oct. 27, 2015), https://www.fdic.gov/regulations/resources/brochures/your_insured_deposits-english.html.
2. Beneficiary FAQs, Bank of America, https://www.bankofamerica.com/deposits/beneficiaries-faqs/ (last visited July 21, 2023).

One of the main reasons that a person creates a revocable living trust (a trust established during a person’s lifetime that they can amend or revoke) instead of relying on a will to transfer their money and property to their beneficiaries is to avoid probate. Probate is the court process during which a person’s will is found to be legally valid and their money and property are distributed to the individuals or organizations named in their will. There are pros and cons to probate, and after weighing them, some people may prefer to establish a testamentary trust, which is a trust created through a will—even if this means that the person’s money and property must go through probate before the trust is funded and money is given to beneficiaries. There are other reasons why a testamentary trust may be a great option; for example, they allow you to direct the amounts and timing of distributions to beneficiaries and reduce the upfront costs associated with the creation of the trust.

To Avoid Probate or Not to Avoid Probate: That Is the Question

In deciding whether a testamentary trust is right for your family or loved ones, consider whether avoiding probate is a priority for you and evaluate the pros and cons, which may vary depending on jurisdiction and the size of your estate.

The fees your estate must pay during the probate process will vary depending on the size and complexity of the estate as well as state law, which sets the amounts charged for court filings. In some states and for larger estates, probate can be very expensive. During the probate process, an estate may have to pay court fees, executor’s fees, attorney’s fees, accounting fees, appraisal and valuation fees, a probate bond, and other miscellaneous fees. These expenses can quickly add up and reduce the amount your beneficiaries will ultimately receive. However, for smaller estates and in some states, the probate process is relatively inexpensive and may not be a significant consideration in determining whether to choose a will that establishes a testamentary trust at death over a revocable living trust.

In addition, depending upon the process established in each state and the complexity of the estate, probate may be time-consuming and delay the distribution of funds from the testamentary trust for months or years. In states in which procedures allow probate to be expedited in many situations, this may be less of a concern.

Because probate is a matter of public record, some documents, including your will and information about the testamentary trust it creates upon your death, can be accessed by any member of the public, resulting in a lack of privacy. As a result, personal information about your family and other beneficiaries, including who is inheriting and the types of money and property they are inheriting, is available for anyone to see. In contrast, a revocable living trust does not become part of the public record, allowing the identities of your beneficiaries and the details about your estate to remain private.

Because it is a court process, probate involves oversight by a judge or court clerk until all distributions have been made. Trustees of a testamentary trust may need to meet regularly with the probate court, which will monitor its administration until the trust expires. While some may find this oversight burdensome, it may provide peace of mind for those who want additional assurance that the trust will be administered as they intended.

Maintain Control Over the Distribution of Money and Property

Beneficiaries under a will generally receive the money or property outright as soon as distributions are authorized by the probate court (except for minor children, whose inheritance may be held in a custodial account until they reach the age of majority). However, if you include a testamentary trust in your will, the terms of the trust can specify the timing and amounts of the distributions to your beneficiaries. Although a testamentary trust is created when you pass away, you outline the instructions for the trust in your will during your lifetime and can change them at any time while you are alive. 

A testamentary trust may be beneficial for parents of young children, adult children who have many creditors or poor spending habits, or disabled children who need ongoing support and need to maintain eligibility for government benefits. It may also protect beneficiaries in the event of divorce by safeguarding their inheritance during division of property. The trustee you name in your will has a responsibility to make distributions in accordance with the instructions you provide in your will. As a result, you can provide your family members with resources they need over time until the trust terminates. You can specify if you want the trust to continue until your children reach a certain age or meet a particular milestone. In addition, you can instruct what distributions should be used for, such as costs associated with your children’s health, education, maintenance, or support.

Defer Creation of the Trust Until You Pass Away

A revocable living trust is typically more expensive to create, so a testamentary trust is a good option if you need to minimize costs now but think a trust will ultimately benefit your family members and loved ones. A testamentary trust will be created and funded after you pass away and the costs of establishing it will be borne by your estate, making it a more affordable option during your lifetime. This also means that you will not have to change ownership of any accounts and property during your lifetime, since this will be part of the funding process after your death. Your wealth may have time to grow over the course of your lifetime, and your estate may be better able to cover the costs when you pass away.

We Can Help

Revocable living trusts and testamentary trusts both offer benefits that can ensure that your wishes are carried out and your family and loved ones are cared for. If you are unsure about which type of trust you should include in your estate plan, call us today to set up an appointment. We can help you think through what will work best for your unique circumstances.

One important purpose of estate planning is to facilitate the transfer of ownership of your money and property to your family and loved ones when you pass away. For this transfer to be as stress-free and efficient as possible, it is crucial that estate planning documents be thorough and provide the necessary information. Nevertheless, there is some information that should never be included in your estate planning documents. 

Social Security Numbers

You may think that it would make sense to refer to yourself and your family members or loved ones by using their Social Security numbers to ensure that they are correctly identified when the time comes. It is important to provide information in your estate planning documents that is sufficient to properly identify your beneficiaries, but using full legal names, including middle name or initial, is typically adequate. Providing Social Security numbers would leave the individual vulnerable to the risk of identity theft because there are several estate planning documents that may become part of the public record. A will may need to be filed with the probate court at your death, or a power of attorney or certificate of trust may need to be recorded if real estate is transferred. Once these documents are part of the public record, complete strangers will have access to this private information by making a simple request of the probate court or recording office and paying a small fee. Considering that in 2022 alone, the Federal Trade Commission received 1.1 million reports of identity theft,¹ Social Security numbers should never be included in anyone’s estate plan.

Keep in mind that you may need to provide your family members’ Social Security numbers when you designate them as beneficiaries of your retirement or other accounts, but those forms never become part of the public record and therefore are not as vulnerable to identity thieves.

Account Numbers

Similarly, unauthorized people may use account numbers to steal money from your accounts if those numbers are listed in your estate plan and become part of the public record. It is important to keep your account numbers in a secure location rather than including them in your will. You also should be cautious about making them readily available to family members unless you have designated one or more of them to act as your agent under a power of attorney, guardian, trustee, or a similar role that imposes a duty on them to act in the best interests of both you and your future beneficiaries. 

Think carefully about who you choose to act in these roles because they will have access to important financial information. Keep in mind that although a family member may often be the best choice, sometimes even family members prove to be untrustworthy. In October 2022, Kile and Debra Madsen were found guilty in New Hampshire of theft after they made unauthorized purchases, payments, and withdrawals from Kile’s father’s bank account between December 2015 and August 2016.² Kile’s father, who was eighty-six when he died in 2018, suffered from dementia. The pair were sentenced to serve several years in state prison and forbidden from caring for any elderly, disabled, or impaired adult.

Rather than including account numbers in your estate plan, you should protect yourself by taking steps to avoid the disclosure of account numbers and other financial information except to someone you trust and have legally designated to act on your behalf.

Disparaging Remarks

Many people have difficult family relationships. It may be tempting for a willmaker to “deliberately and needlessly render[] articulate by his Will all his pent up frustrations, his desire for revenge unanswerable by the living victim, his unreasoned prejudices, his desires for spite past the grave.”³ The 1912 book Ancient, Curious and Famous Wills⁴ mentions the following barbed bequest included in the will of Philip, Fifth Earl of Pembroke, who died in 1669: “I give nothing to my Lord Saye, and I do make him this legacy willingly, because I know that he will faithfully distribute it unto the poor.” 

Some may think that their will is a means by which they can have the last word, so to speak, in a contentious relationship. However, a few courts have held an estate or the executor of an estate liable for testamentary libel, that is, publishing a false statement that is damaging to a person’s reputation in a will. For example, in the 1914 case Harris v. Nashville Trust Co.,⁵ the plaintiff’s uncle included the following in a codicil to his will: “And this sum of two hundred and fifty (250) Dollars to John Woodfin, $1.00 to William Woodfin, and $1.00 to Cleo Woodfin, the illegitimate children of my brother James Woodfin, is all that they are ever to have of my estate.” At that time, illegitimacy was viewed very negatively, so Cleo filed suit against the executor of the estate for damages, alleging that she was the legitimate child of her parents and that the codicil had been maliciously added to the will to “blacken her character.” Although the executor claimed that no cause of action existed against the executor allowing Cleo to pursue her claim for damages, the court disagreed and allowed the case to proceed. So it is prudent to call upon the better angels of your nature and use your will as a means of blessing those you love instead of blasting those you dislike.

We Can Help 

As experienced estate planning attorneys, we will make sure that the information necessary to achieve your wishes is included in your estate planning documents and that anything that would risk damage to your estate and ultimately, your beneficiaries, is excluded. Call us today to set up an appointment so you can look forward to gaining the peace of mind that comes with knowing you have put a plan in place that protects you and your loved ones.

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Footnotes

1. New FTC Data Show Consumers Reported Losing Nearly $8.8 Billion to Scams in 2022, Fed. Trade Comm’n (Feb. 23, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/02/new-ftc-data-show-consumers-reported-losing-nearly-88-billion-scams-2022.
2. N.H. Dep’t of Justice, Kile and Debora Madsen Sentenced to State Prison for Stealing from Elderly Relative, Off. Att’y Gen. (Oct. 3, 2022), https://www.doj.nh.gov/news/2022/20221003-madsen-sentenced.htm#:~:text=Madsen%20to%20each%20serve%20one,years%20after%20release%20from%20incarceration.
3. In re Croker’s Will, 105 N.Y.S. 190, 191 (N.Y. Sup. Ct. 1951).
4. Virgil M. Harris, Ancient, Curious and Famous Wills 290, https://archive.org/stream/ancientcuriousfa00harrrich/ancientcuriousfa00harrrich_djvu.txt.
5. 162 S.W. 584 (Tenn. 1918).

Estate planning helps bring peace of mind and a sense of security, both in our lifetime and beyond. While we cannot predict our fate, we can at least dictate how our money and property will be distributed and ensure that we provide for our loved ones. 

Physical security is a big part of feeling emotionally, psychologically, and spiritually secure. More Americans have a home security system than have an estate plan. If we do not protect our property in the here and now, it will not be there to pass on later. 

End-of-life situations can present thieves with opportunities to take advantage of vulnerable families. A home security system can fit nicely into estate planning goals, providing an extra layer of protection when we are gone—both temporarily and permanently. 

Are You Protected from Property Crime? 

Property crimes are the leading type of crime in the United States. Every year, around 2.5 million homes are burglarized. A break-in occurs every twenty-six seconds, and a burglary occurs every fifteen seconds. Yet fewer than half of Americans have a home security system. 

In 2021, approximately $737 billion worth of property was reported stolen in residential burglaries. The top items taken by thieves were vehicles, cash, clothing, jewelry, household goods, office equipment, and electronics. Police solve only about one out of eight reported burglary cases. 

Criminals are keenly aware of which homes have a security system and which do not. According to criminology research, more than 80 percent of would-be burglars check for an alarm before attempting a burglary, and 60 percent say they look for an alternate target if a property has an alarm. Most burglars say they would break off an intrusion in progress upon discovering a home security system.

Incorporating a Security System into Your Estate Plan

Those who have a home security system are ahead of the curve. A survey commissioned by YouGov found that just 38 percent of Americans own a home security product. However, that number is higher than the roughly one-third of Americans who have an estate plan.

If you have both a home security system and an estate plan, then you are probably proactive about planning for possible contingencies. But if you have not incorporated your security system into your estate plan, you should do so as soon as possible. 

Give Access to a Trusted Decision-Maker

You may have already given a house sitter, pet sitter, friend, or neighbor access to your security system. While they can enable and disable the alarm on an emergency basis, decision-makers you have designated in your estate plan to act on your behalf—such as a personal representative, trustee, guardian, or financial or medical power of attorney agent—may need access as well. 

In fact, a trusted decision-maker may have a legal duty to keep your property secure in accordance with your wishes, which can include using the security system. Or, if you do not have a system currently but wish to incorporate security technology as an added layer of protection after your death or incapacity, you can specify that in your estate plan. 

When providing access to a security system that you installed, make sure the person you are entrusting has all the information they need. 

• Wired systems are typically operated with a password-protected control pad.
• Wireless systems can be controlled through a smart device app that requires login credentials. 
• There are also systems monitored 24/7 by a professional security company that calls you—or a neighbor, friend, or family member—to verify an alert. With a monitored system, provide the company with the contact information of somebody other than you who can receive alerts. 

An Empty and Unsecured House Is Enticing to Criminals

Security system costs are an expense of the estate. Depending on their features, they run between $250 to $2,000, exclusive of monthly fees. 

This may be money well spent protecting your property. Authorities have warned in recent years of thieves using public obituaries and social media posts to target the homes of deceased people. 

Burglars are more likely to break into a home that they know is unoccupied. It can take months for a family to go through a loved one’s home and inventory everything in it as part of the estate administration process. In between visits, the property may be more prone to break-ins.  

In addition to installing a security system to deter crime, you might also instruct your family and friends to avoid excessive sharing of obituary information. Keep the circle of trust close, because cyber snoops could be digitally casing your house, ready to strike at a vulnerable moment. 

Security and Peace of Mind Go Hand in Hand

Having a plan in place that incorporates wills, trust, powers of attorney, advance directives, and other legal documentation helps eliminate some of life’s uncertainty. Without an estate plan, you are leaving your legacy to chance. 

In death as in life, the smallest details can make the biggest difference. A will is just the beginning of a strong, well-thought-out estate plan. When the time comes for your loved ones to deal with your estate, your estate plan may prove ineffective if they do not have access to your home security system and other account information. 

Our lawyers can help you put together an estate plan that leaves nothing out, including your digital property, home systems, and personal accounts. To ensure that every “t” is crossed and every “i” is dotted in your estate plan, reach out to our office to schedule an appointment.

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.