The internet should give us all pause for thought, particularly in the context of estate planning. In preparing a will, we focus on home, bank accounts and a lifetime of accumulated tangible treasures that we wish to pass on to loved ones. And we select trusted friends or family members to take responsibility for the task of seeing these things make it into the right hands.
Social networking accounts, and the data they store, are rarely contemplated in this context. For those of us less tech-savvy than the rest, the question may well be, does it matter? The answer must be a resounding YES, as the information that has the potential to be lost can be irreplaceable. Many people use their Facebook or Google account as a personal databank, or store all of their pictures, music, videos and other digital content in “the cloud”. While there is some variation amongst social networking providers as to what happens to the account on the death of the account holder, one thing seems to be certain: access by next of kin to information stored in the account will be limited at best. Some sites will delete data stored in an account after a period of inactivity, while others allow an account holder to nominate a person to “inherit” the content in certain proscribed circumstances. Others, still, like Facebook, “memorialize” an account, which means the profile remains in existence forever, access being restricted to friends only. In part, the lack of consistency in approach with regards to the death of account holders is the result of privacy and probate laws not keeping pace with the reality of the internet, as well as a failure to properly define “digital assets”. As well, establishing policies to deal with the death of account holders is neither sexy nor fun.
In an effort to achieve a fair division of matrimonial assets, the Court is increasingly demonstrating its willingness to scrutinise the beneficial interests of divorcing spouses under family trusts.
A high divorce rate seems to have become the norm rather than the exception in the western world. This reality, and the Court’s determination to achieve fairness on the dissolution of marriage, has generated a measure of uncertainty with respect to the treatment of trusts. In a discretionary trust context, a beneficiary has only a right to be considered in the exercise of the trustees’ discretion and this has shielded beneficiaries on divorce, who had no fixed entitlement to any portion of the trust fund. However, the Court, in divorce matters, is concerned about achieving a fair division of marital assets and increasingly has taken the view that a divorcing spouse’s interests under a trust should be subjected to closer scrutiny.
Many of us have life insurance and never give it a moment’s thought. It was offered to us as part of an employment package, or recommended to us when we got married, bought a house or had a child; another of life’s milestones and an acceptance of the responsibilities of adulthood. We feel secure that for a reasonable sum paid annually, our families will be provided for if the worst should happen. We renew the policy each year, never revisiting its terms or considering whether our circumstances or objectives may have changed.
In truth, however, the designation of life insurance beneficiaries is as important to your family’s future, in the event of your death, as the terms of your will. Few of us would make a will without first considering whom we want to benefit and in what manner, obtaining legal advice and then carefully reading the documents, before signing on the dotted line. The same should hold true for life insurance.
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