Memorandum of Wishes

A Memorandum of Wishes is a document that is stored with your Will. It is not legally binding (and should be expressed as such to ensure it does not revoke your Will) but can be used by your Executors, beneficiaries or by the Court to provide context to your Will or further instructions. We regularly assist clients to prepare Memoranda of Wishes in the following situations:

• Where they have chosen to exclude someone from their Will , or give disproportionate amounts to beneficiaries, and wish to explain their reasoning for so doing (which can also be produced to the Court if the Will is challenged);
• Where their Executors/Trustees will be taking control of a Trust or business and the Willmaker wishes to provide guidance on how that Trust or business should be run; or
• Where the Willmaker has children under the age of eighteen and has appointed a Guardian in their Will to whom the Willmaker wants to give directions as to the children’s upbringing.

A Memorandum of Wishes is a flexible document and can be adapted to the individual Willmaker’s needs. We have seen Memoranda include directions such as ‘I would like my Trustees to advance funds to my grandchildren to purchase a car at the age of eighteen’ or even ‘I would like seafood platters at my wake’.

We can help you tailor this document to fit you and your wishes. For more information on the Memorandum of Wishes, see our blog post here.

Personal Information and Asset Register

As part of our service, we provide all Wills clients with a copy of our Personal Information and Assets Register, which is a document (in hard- and soft-copy) specifically tailored for clients to record up-to-date details of their property and other matters. The document includes spaces to record the contact details of individuals who should be contacted in the event of the Willmakers death, the details of any pre-paid funeral plans or burial plots, and the usernames and passwords for the Willmaker’s social media accounts. Such a document assists the Executors of the Willmaker’s Estate to carry out their wishes as well as the day-to-day running of the Estate, as the details of the Deceased’s assets are set out clearly for the Executor to ‘call in’. We regularly update our Register document to ensure it is in line with our clients’ needs and can even store a digital copy in the cloud for clients on request.

Organ Donor Register

Many of our clients wish for their organs to be donated for medical purposes after their death. While we can include such a direction in a Will, Memorandum of Wishes or Personal Information and Asset Register, it would likely be too late to implement your wishes for organ donation by the time those documents are read. We recommend that any client who wishes to donate their organs registers their intentions with Donate Life online. Donate Life then provides each individual with a donor card to carry in their wallet. It is also crucial that you inform your family members of your wishes as they may be called upon to make the final decision as to whether your organs are recovered for donation.

Please note that organ donation is a separate issue to Advance Care Directives, which deal with your wishes for the end of your life. For more information on advanced planning, click here.

Digital Keys

As our lives become increasingly digital, clients are becoming conscious of what happens to their ‘digital assets’ after their deaths. Such assets may include subscriptions and purchased content (e.g. Netflix and Spotify accounts), photos stored in the cloud (e.g. through iCloud or Dropbox) or important documents, such as those related to a business, stored in a Google Drive. Your Will may dictate the ownership of these digital assets or you may have other specific wishes for these assets, such as a playlist for your funeral or photos for your memorial booklet. You may also wish for your Executors to log into your social media accounts to place them in ‘memorial mode’.

To address these concerns, some providers have introduced products that allow individuals to nominate a contact who can access their account after their death through a ‘key’ or ‘legacy contact’. We suggest that our clients research their own legacy contact or digital key products as they will vary according to which services you use. While we do not endorse any specific product, this article gives a breakdown of options for some popular providers such as Apple, Google and Facebook.

Looking for holistic Estate Planning advice, taking into account both your legal options and your non-legal wishes? Contact our friendly team today to arrange a no-obligation consultation at our CBD office or via videoconference.

The post Your Death Wishes and how to record them appeared first on Tony Kelly Lawyer & Estate Planner.

Our online presence is, in effect, today’s shoebox of treasured possessions, containing electronic correspondence, images, and other “virtual” mementos. There also a myriad of other related issues such as banking and social media accounts which require a knowledge of your passwords to provide access. However, managing them after death or incapacity can be much less straightforward than a box under the bed!

By planning for how these assets can be managed after your death and providing access to accounts relating to banking, email, websites and social media profiles, you can ease the administration of your estate and the process for your loved ones in dealing with these issues and your on-line presence subsequent to your passing.

Despite 69% of Australians being active social media users, 83% have not discussed with their loved ones what they want to happen to their social media accounts when they die. Further, only 3% of Australians who have a Will have included instructions on what to do with their online accounts after their death. Failing to prepare for your digital legacy can cause complications and delay for those managing your estate and can compromise the privacy and security of information you have kept online.

Australia does not yet have specific legislation regarding the management of digital assets so families have no clear framework as to their rights, access and ownership of the online life left by the incapacitated or deceased loved one. Moreover, internet companies each have different terms and conditions regarding what happens to a person’s account when they die and policies surrounding the ownership of data, the possibility to deactivate or memorialise an account by someone other than the account holder and the ability to appoint a digital executor in circumstances of incapacity or death.

Planning for your digital legacy is therefore crucial and can be done by taking a few, relatively simple steps.

Firstly, create a detailed list of your digital assets. Whilst there is no formal definition, these can include:

• Hardware e.g. computers, phones, external hard drives, cameras
• Personal accounts e.g. email, internet banking, social media profiles, online storage, websites, blogs
• Information or data stored electronically e.g. documentation, mailing lists
• Intellectual property e.g. domain names, trademarks, code, copyrighted materials

To ensure those authorised can gain access to your accounts, you must also provide all passwords and login details. Given the sensitivity of this information it is best you store these online using secure Password Management software or include them in a non-binding letter such as a Memorandum of Wishes and have it kept in a secure location. Note that it is not advised to provide this information in your Will as it will ultimately come into the public domain.

Once you have created your digital asset register, make a plan of what you want to happen to each asset. Carefully consider the directions you give for each account and who you want to nominate to perform them. Some directions you could give include:

• Closing or deleting accounts;
• Downloading the contents of an account or transferring it to a beneficiary;
• Archiving and saving accounts using online memorialisation programs
• Locking websites and closing domain names;
• Shutting down any online businesses and directing where revenue should be transferred;
• Nominate beneficiaries for digital devices and instruct them on what to do with the content.

As we rapidly move our lives more online and accumulate extensive digital assets, it is fundamental to include in your estate planning, provisions and careful instructions for how your digital life will be preserved and managed by your loved ones when you are gone.

The post Providing your legal representative with access to your online assets appeared first on Tony Kelly Lawyer & Estate Planner.