The Michigan Court of Appeals was recently asked to decide if a completely electronic "will" was valid. The ruling was that it is.
Duane Horton was only 21 when he committed suicide. Before his death, he left an undated, handwritten entry in his journal. The journal entry said that his "final note" was on his phone, that the app should be open, and that if it wasn’t open it could be found on Evernote. The entry also gave an email address and password for his Evernote account.
The "final note" was a typed document with Duane's name typed at the end but no handwritten signature. The document contained a detailed paragraph about who should receive Duane's property after his death. The case ended up in court because Duane's mother objected to the "final note" - which disinherited her.
The Court of Appeals found that while there are specific formal requirements for making a will, even a document that doesn't meet those requirements can be a will if there is "clear and convincing evidence that the decedent intended the document to [be his] will."
In this case, the trial court had heard the testimony of many witnesses about Duane's intentions, and his mother's testimony about her strained relationship with him provided additional support for Duane disinheriting her. The Court of Appeals agreed with the trial court that the "final note" was a valid and enforceable will.
If you have any questions regarding setting up your own will, it is important to get advice from an experienced estate planning attorney. Contact us for a free consultation.
Most people have at least one asset that includes a beneficiary designation (i.e, a life insurance policy, 401(k), IRA, annuity, etc.) It is important to remember that a beneficiary designation is the “trump card” and will overrule your will, your trust, or any other document that tries to direct to whom these funds are paid at the time of your death.
That is why it is extremely important to keep these designations up-to-date and to retain copies in your personal files. It is not unusual for an employer to lose or misplace a beneficiary designation that you previously filed. If your family cannot find a copy of a more recent designation in your personal papers, then the last designation on file with the employer will control who gets the funds.
It is not uncommon for people to forget to update these designations after a divorce. When the person dies, often many years or decades later, the ex-spouse gets an unexpected windfall because he or she is still named on an old life insurance policy or IRA.
Even more important is to seriously consider whether to name a minor child as a beneficiary. If you do, once you are deceased, that child will get the funds on his 18th birthday – regardless of the amount of money involved or his maturity level to handle those funds. It is often much safer to have your trustee or your estate named as the beneficiary and then to have provisions in your will or trust for someone to manage the funds until the child is a more suitable age.
These scenarios illustrate how important it is to have professional assistance when planning your estate. A professional will ask questions that you may never have thought of.
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