Elder Law Planning Archives

The Impact of Digital Assets on Estate Planning and Probate

March 31, 2025/by Hewitt Law PLLC

In today’s digital age, the lives of seniors are increasingly intertwined with the online world, from cherished family photos to valuable cryptocurrency investments. Addressing the unique challenges of digital assets in estate planning is essential. Traditional methods often fall short in managing the complexities of your online life. Failing to address digital assets in your estate plan can lead to lost memories, financial losses, legal battles, and unnecessary stress for your loved ones. To protect your digital legacy, it’s important to inventory your digital assets, specify your wishes for each, and designate a digital executor who can manage these assets according to your instructions after you’re gone.

What Exactly Are Digital Assets?

In the context of estate planning and probate, a digital asset is broadly defined as anything of value that exists in a digital or electronic format and is not inherently tangible. Unlike a physical photograph or a stock certificate, a digital asset exists only as data, accessible through electronic devices and online platforms. This distinction is essential because it fundamentally changes how these assets are identified, accessed, valued, and distributed after death.

Categorizing Your Digital World

To understand the scope of digital assets, it’s helpful to categorize them:

Financial Digital Assets:

Cryptocurrencies (Bitcoin, Ethereum, Litecoin, and thousands of others)
Online Banking Accounts (Checking, savings, money market accounts)
Investment Platforms (Brokerage accounts, robo-advisors)
Digital Payment Services (PayPal, Venmo, Cash App, Zelle)
Online Lending Accounts
Peer-to-Peer Lending Platforms

Personal Digital Assets:

Social Media Accounts (Facebook, Instagram, Twitter, LinkedIn, TikTok, Snapchat)
Email Accounts (Gmail, Outlook, Yahoo Mail, ProtonMail)
Cloud Storage (Google Drive, Dropbox, iCloud, OneDrive, Amazon Photos)
Digital Photos and Videos (Stored locally or in the cloud)
Music Libraries (iTunes, Spotify, Amazon Music)
E-books and Audiobooks (Kindle, Audible)
Online Gaming Accounts (World of Warcraft, Fortnite, etc.) and in-game items
Domain Names and Websites (Personal blogs, online portfolios)
Loyalty Program Points (Airline miles, hotel points, credit card rewards)

Intellectual Property Digital Assets:

Online Businesses (E-commerce stores, online service providers)
Blogs and Websites with Monetization (Ad revenue, affiliate marketing)
Digital Artwork (Graphic designs, illustrations, digital paintings)
Software and Apps
Online Courses and Educational Materials
Digital Copyrights and Trademarks
Digital Patents.

Unique Digital Assets:

Non-Fungible Tokens (NFTs) (Representing ownership of digital art, collectibles, virtual real estate)
Digital Collectibles
Metaverse property

The intangible nature of digital assets presents unique challenges. Unlike a house or a car, you can’t physically hand over a Bitcoin wallet or a social media account. Access is controlled by passwords, encryption, and the terms of service of online platforms, making traditional estate planning methods inadequate.

The Unique Challenges Digital Assets Pose to Traditional Estate Planning

Traditional estate planning, built around physical assets, is ill-equipped to handle the unique characteristics of digital assets. Several factors contribute to this challenge:

Intangibility and Invisibility: Digital assets are often hidden from plain sight. They reside on servers, in cloud storage, or on personal devices, making them difficult to identify and locate without specific knowledge and access credentials. An executor may not even know what to look for.
Access and Control Hurdles: Passwords, encryption, and multi-factor authentication (MFA) are designed to protect digital assets from unauthorized access. While crucial for security, these measures create significant barriers for executors and beneficiaries after the owner’s death. Even with a will, gaining access often requires navigating complex legal and technical processes.
Valuation Nightmares: Determining the fair market value of digital assets can be extremely difficult. Cryptocurrencies are notoriously volatile. NFTs can have subjective values based on market trends and collector demand. Even seemingly mundane assets like domain names can have significant value depending on their traffic and branding.
Terms of Service (TOS) Traps: Nearly every online platform operates under its own Terms of Service (TOS) agreement. These agreements often restrict the transferability of accounts upon death, limit access for family members, or even grant the platform ownership of the user’s data. These TOS can override the instructions in a will, creating legal conflicts.
Security and Privacy Risks: During probate, digital assets are vulnerable to hacking, identity theft, and fraud. Executors have a duty to protect these assets, but they may lack the technical expertise to do so effectively. Improper handling can also expose sensitive personal information.
Jurisdictional Labyrinths: Digital assets can be stored on servers located anywhere in the world, raising complex jurisdictional questions. Which country’s laws apply to a particular digital asset? This can complicate probate and create uncertainty about legal rights and obligations.
The Ever-Changing Digital Landscape: Technology evolves at an astonishing pace. New types of digital assets emerge constantly, and platforms change their terms of service frequently. Estate plans that were adequate a few years ago may be completely outdated today.

Complications in Probate and Estate Administration with Digital Assets

The challenges outlined above translate into significant complications during the probate process:

Locating and Identifying Assets: The executor’s first task is to identify all of the deceased’s assets. This is a daunting task with digital assets, often requiring a digital scavenger hunt across multiple devices, online accounts, and even paper records.
Gaining Legal Access: Even when assets are identified, gaining legal access is a separate hurdle. The executor may need to obtain court orders to compel platforms to grant access, even if the will explicitly mentions digital assets. This process can be time-consuming and expensive.
Inventorying and Appraising: Once accessed, digital assets must be inventoried and appraised for estate tax purposes. This requires specialized knowledge and expertise, particularly for complex assets like cryptocurrency and NFTs.
Distribution Difficulties: Transferring ownership or access to beneficiaries can be technically challenging and may be restricted by platform TOS. For example, transferring a cryptocurrency wallet requires specific technical knowledge and security precautions.
Fraud and Mismanagement Risks: The lack of transparency and the ease with which digital assets can be manipulated create opportunities for fraud. Executors must be vigilant in protecting these assets from theft or unauthorized access.
Executor Liability: Executors have a legal duty to manage the estate’s assets prudently. Failing to properly identify, secure, and distribute digital assets can expose them to personal liability.
Probate Delays and Costs: The complexities of handling digital assets can significantly prolong the probate process and increase legal and administrative costs.

Proactive Estate Planning Strategies for Digital Assets

The best way to avoid the pitfalls of digital asset probate is to plan proactively. Here are the essential steps:

Create a Comprehensive Digital Asset Inventory: This is the cornerstone of your digital estate plan. Document all of your digital assets, including:

Account Name (e.g., Gmail, Facebook, Coinbase)
Username/Login ID
Website URL (if applicable)
Brief Description of the Asset
Approximate Value (if applicable)
Location of Access Information (e.g., password manager, secure document)
Do NOT include passwords directly in the inventory itself. Instead, note where the passwords can be found securely.

Securely Store Access Information: Use a reputable password manager, a secure digital vault, or a locked physical safe to store your passwords, recovery phrases, and other sensitive information. Ensure your executor knows how to access this information.

Choose a Digital Executor: Designate someone you trust, who is also reasonably tech-savvy, to be your “digital executor.” This person will be responsible for managing your digital assets after your death. You can appoint the same person as your overall executor, or a separate individual with specialized skills.

Utilize Online Tools: Many online platforms (like Facebook and Google) offer built-in tools that allow you to designate a “legacy contact” or specify what should happen to your account after your death. Take advantage of these tools whenever possible.

Update Your Will and Trust: Your will and/or trust should include specific clauses addressing your digital assets. These clauses should:

Grant your executor the authority to access, manage, and distribute your digital assets.
Specify your wishes for each major category of digital assets (e.g., memorialize social media accounts, transfer cryptocurrency to a specific beneficiary).
Address any potential conflicts with platform TOS.

Consider a Power of Attorney: A durable power of attorney can grant someone the authority to manage your digital assets during your lifetime if you become incapacitated.

Regularly Review and Update: Your digital life is constantly changing. Review your digital asset inventory and estate plan at least annually, or whenever you create new accounts, change passwords, or acquire significant new digital assets.

Communicate with Your Family and Attorney: Have open conversations with your family and your estate planning attorney about your digital assets and your wishes. Ensure your executor understands their responsibilities and knows where to find the necessary information.

Best Practices for Executors and Estate Administrators in Handling Digital Assets

If you are an executor tasked with managing digital assets, follow these steps:

Review Estate Planning Documents: Carefully examine the will, trust, power of attorney, and any other relevant documents for instructions regarding digital assets.
Locate the Digital Asset Inventory: If the deceased created an inventory, this is your starting point. If not, you’ll need to conduct a thorough search.
Digital Forensics (If Necessary): In some cases, you may need to engage a digital forensics expert to recover data from devices or locate hidden digital assets.
Contact Online Platforms: Contact each platform where the deceased held an account. Provide proof of death, letters of testamentary (or letters of administration), and any other required documentation. Be prepared to navigate complex procedures and potentially face resistance.
Password Recovery: If you don’t have passwords, explore legal and technical options for password recovery. This may involve obtaining court orders or using specialized software.
Secure Digital Assets: Once you gain access, take steps to secure the assets. Change passwords, enable two-factor authentication, and transfer assets to secure storage.
Valuation: Obtain professional valuations for any digital assets with significant value.
Distribution: Distribute the assets according to the will or, if no will exists.
Maintain Records: Keep detailed records of all your actions, communications, and expenses related to managing digital assets.
Seek Legal Counsel: Consult with an attorney experienced in digital asset probate to ensure you are complying with all applicable laws and regulations.

Contact Hewitt Law PLLC for Digital Estate Planning Solutions in West Virginia

Digital assets are no longer a niche concern; they are an integral part of modern life and a critical component of a comprehensive elder estate plan. Ignoring them can lead to significant problems for your loved ones, including lost assets, legal battles, and emotional distress. Don’t wait until it’s too late. Contact Hewitt Law PLLC today to schedule a consultation with an experienced estate planning attorney. We can help you create a personalized estate plan that addresses your unique digital assets and protects your legacy for g

Navigating Guardianship When Family Members Disagree: Legal and Emotional Considerations

March 3, 2025/by Hewitt Law PLLC

Guardianship may become necessary when a loved one is unable to make decisions due to age, illness, or disability. It’s a legal arrangement where a court appoints a guardian to manage personal or financial affairs for the ward. The process can become complex and emotionally charged when family members disagree on guardianship decisions. This legal arrangement can apply to minors, elderly individuals, or adults with disabilities.

Types of Guardianship

Guardianship of the Person

The guardian makes personal and healthcare decisions for the ward. These decisions may include where the ward will live, what medical treatments they receive, and how their daily care needs are met. Guardians of the person must ensure that their ward’s healthcare, social, and personal needs are met while respecting their dignity and autonomy as much as possible.

Guardianship of the Estate

The guardian manages the ward’s financial affairs, ensuring that bills are paid, assets are protected, and financial decisions are made in the ward’s best interest. This type of guardianship is crucial for individuals who can no longer manage their own finances due to cognitive decline, mental illness, or disability. The guardian of the estate is responsible for managing income, investments, debts, and expenditures while providing regular financial reports to the court.

Limited Guardianship

The guardian has authority over specific aspects of the ward’s life while the ward retains some decision-making power. This arrangement is ideal for individuals who may need assistance with certain responsibilities, such as managing finances, but can still make personal decisions. Limited guardianship is designed to provide the least restrictive means of assistance, allowing the ward to maintain as much independence as possible.

Temporary or Emergency Guardianship

Short-term arrangements for urgent situations, such as when an individual suddenly becomes incapacitated due to an accident or medical emergency. Courts may appoint a temporary guardian to make critical decisions while a permanent arrangement is determined. Emergency guardianships are often granted when there is an immediate threat to the ward’s safety or well-being, and they typically last for a set period before requiring further judicial review.

Type of Guardianship	Description
Guardianship of the Person	The guardian makes personal and healthcare decisions for the ward, including living arrangements, medical treatments, and daily care needs.
Guardianship of the Estate	The guardian manages the ward’s financial affairs, ensuring bills are paid, assets are protected, and financial decisions are made in the ward’s best interest.
Limited Guardianship	The guardian has authority over specific aspects of the ward’s life while the ward retains some decision-making power, providing the least restrictive means of assistance.
Temporary or Emergency Guardianship	Short-term arrangements for urgent situations when an individual becomes incapacitated, allowing critical decisions to be made while a permanent arrangement is determined.

Common Causes of Guardianship Disputes

Disagreements over guardianship often arise due to:

Competing Petitions: Multiple family members seeking guardianship can create significant legal conflicts. Each family member may believe they are best suited to serve as the guardian, leading to contested court proceedings. Judges consider various factors, such as the petitioner’s relationship with the ward, their financial stability, and their ability to make sound decisions. The existence of multiple petitions can prolong the guardianship process, making it emotionally and financially draining for all parties involved.
Concerns About a Proposed Guardian: Family members may raise objections about a potential guardian’s fitness, citing concerns such as a history of neglect, financial irresponsibility, or even abuse. Allegations of undue influence, conflicts of interest, or personal grievances can complicate matters further. Courts evaluate these concerns carefully, often requiring background checks, medical evaluations, and testimonies from professionals before making a determination.
Financial Disputes: Guardianship cases often involve financial decision-making, and disputes over the management of the ward’s assets can arise. Family members may worry about potential financial mismanagement, whether due to incompetence or intentional misconduct. The guardian of the estate is responsible for overseeing all financial transactions, and any suspicion of misappropriation or fraud can lead to legal challenges and even removal of the guardian.
Disagreements on Medical or Care Decisions: Differing opinions on medical treatments, housing arrangements, and long-term care options can cause friction between family members. One party may advocate for in-home care, while another prefers a nursing facility, leading to disputes over what is in the ward’s best interest. Some family members may push for aggressive medical interventions, while others favor palliative care, making it necessary for courts to intervene in highly contested cases.
Preexisting Family Conflicts: Many guardianships disputes stem from long-standing family tensions. Rivalries among siblings, unresolved emotional grievances, or strained relationships between step-relatives can resurface during guardianship proceedings. Personal biases and past conflicts can cloud judgment, making it difficult for families to focus on the ward’s best interests rather than personal agendas. In such cases, mediation and legal counsel are often necessary to navigate the situation and reach a resolution.

Legal Process for Resolving Guardianship Disputes in West Virginia

When family members cannot reach an agreement, the court will intervene. The process typically involves:

Filing a Petition: Interested parties submit a formal request for guardianship.
Notice and Hearing: Family members receive notice, and a court hearing is scheduled.
Court Investigation: The court may appoint a guardian ad litem or conduct an evaluation.
Evidence Presentation: Each party presents evidence supporting their position.
Judicial Determination: The judge makes a decision based on the best interests of the ward.
Appeals Process: If necessary, a party may contest the ruling.

West Virginia Courts and Guardianship Proceedings

In West Virginia, guardianship cases are handled through probate and family courts, ensuring that decisions prioritize the well-being of the ward. Families facing disputes must prepare thoroughly, as judges rely on factual evidence, medical reports, and expert testimonies to make decisions.

Alternative Dispute Resolution Options

To avoid lengthy litigation, families can explore alternative dispute resolution methods:

Mediation: A neutral third party helps family members reach a mutually agreeable solution.
Arbitration: A binding decision is made by an independent arbitrator.
Family Meetings: Facilitated discussions to resolve disagreements outside of court.

Benefits of Mediation in West Virginia Guardianship Disputes

Mediation can be a cost-effective and less adversarial way to resolve disputes. West Virginia courts often encourage mediation before resorting to litigation, as it allows families to maintain relationships while finding a fair resolution.

Legal Rights and Responsibilities of Guardians

A court-appointed guardian has significant responsibilities, including:

Acting in the best interest of the ward.
Managing the ward’s personal and/or financial affairs.
Submitting periodic reports to the court.
Avoiding conflicts of interest or financial exploitation.

Failure to fulfill these duties can result in legal consequences, including removal or financial liability.

The Emotional Impact of Guardianship Disputes

Guardianship disputes are not only legal battles but also deeply personal conflicts that can strain relationships. Some of the emotional challenges families face include:

Guilt and Resentment: Family members may struggle with guilt over challenging a loved one’s guardianship petition.
Distrust Among Siblings: When multiple siblings are involved, past grievances may resurface.
Emotional Toll on the Ward: Disputes can create unnecessary stress for the person requiring guardianship.

Coping Strategies for Families

Seek Professional Counseling: A therapist can help family members navigate complex emotions.
Engage in Mediation Early: Preventing a dispute from escalating can protect family relationships.
Focus on the Best Interests of the Ward: Keeping the ward’s well-being at the center of discussions can help mitigate personal conflicts.

When to Seek Legal Assistance

If you are involved in a guardianship dispute, seeking legal counsel is essential. An experienced attorney can:

Guide you through the legal process.
Represent you in court proceedings.
Advocate for the best interests of your loved one.
Help negotiate a fair resolution among family members.

How Hewitt Law PLLC Can Help with Guardianship in West Virginia

Guardianship disputes can be legally complex and emotionally taxing. Understanding your rights, exploring alternative resolution methods, and seeking professional legal assistance can help ensure that your loved one’s needs are met. At Hewitt Law PLLC, we are committed to guiding families through guardianship disputes with compassion and care.

If you need legal assistance with guardianship or any other elder law issue in West Virginia, contact our firm today for a consultation.

The Impact of Divorce on Elder Law Planning: Protecting Assets and Ensuring Care

January 28, 2025/by Hewitt Law PLLC

Gray divorce introduces complex challenges for older adults, particularly in the area of elder law planning and asset protection. The dissolution of a long-term marriage often necessitates a comprehensive reevaluation of retirement savings, healthcare coverage, and long-term care strategies.

Critical considerations include preserving financial stability, maintaining access to adequate healthcare, and updating essential legal documents to reflect new circumstances. Dealing with these interconnected issues requires careful planning and often professional guidance to ensure proper asset protection and continued care in later life.

Common Challenges or Pitfalls with Senior Divorces

Divorce in later life can present unique challenges that aren’t always obvious at first. Being aware of these pitfalls can help you avoid costly mistakes and emotional distress.

Overlooking Long-Term Care Costs

One of the most pressing concerns for older adults is long-term care—particularly if you anticipate needing in-home nursing services, assisted living, or a skilled nursing facility. Here are a couple of common issues that might get overlooked:

Failing to Anticipate Soaring Costs: Long-term care in West Virginia (and throughout the country) can be costly, and expenses typically rise over time.
Misunderstanding Medicaid’s Look-Back Period: Transferring assets too close to applying for Medicaid could trigger a penalty, making it harder to qualify for assistance when you need it.

Neglecting to Revise Estate Plans

If your ex-spouse remains listed as a beneficiary on insurance policies or as a healthcare proxy in your living will, confusion or unintended inheritance could follow your passing. You risk:

Unwanted Asset Distribution: If you die without updating your will or trust, your ex-spouse or their heirs may end up with assets you intended for someone else.
Medical Decision-Making Issues: Healthcare providers will turn to named agents. If you no longer want your ex-spouse to have authority, you must name a new representative.

Emotional Strain and Isolation

Late-life divorce can be emotionally taxing. Family members—particularly adult children—may find it difficult to remain neutral. The resulting isolation can exacerbate mental health issues, such as depression, anxiety, or stress-related conditions. This emotional strain can also interfere with important financial or legal decisions if you feel too overwhelmed to think clearly.

Potential Affects of a Later-Life Divorce

Financial Adjustments and Budgeting

After a gray divorce, you might find yourself living on a single retirement check or a portion of your original assets. Regular budgeting becomes essential. If spousal maintenance is awarded, it may be time-limited or insufficient to cover all your expenses, particularly as healthcare needs grow over time.

Medicaid Eligibility Shifts

If you anticipate needing nursing home care or other long-term services, asset division during divorce can affect your Medicaid eligibility. You may inadvertently disqualify yourself for benefits if you receive a large settlement or improperly transfer assets without following the look-back period rules.

Impact on Adult Children

Adult children might feel they must choose sides or provide more direct support—financially or emotionally—for one parent. Clear communication and a transparent estate plan can lessen tension and set realistic expectations about any inheritance or caregiving responsibilities.

Emotional Well-Being

The end of a long marriage is never easy, but proactive planning can reduce anxiety about how you’ll manage financially and physically. Many seniors find relief in knowing they have a structured plan for healthcare, housing, and finances, even if they’re going it alone for the first time in many years.

Updating Estate Planning Documents after a Gray Divorce

When divorce occurs later in life, it’s important to review and update key legal documents to reflect your new circumstances and avoid potential complications in the future. These may include:

Powers of Attorney

Durable Power of Attorney for Finances: This document grants someone the authority to manage your financial affairs if you become incapacitated. If your former spouse was named as your agent, you will probably want to revoke this power and appoint someone else you trust, such as an adult child, sibling, or trusted friend.
Durable Power of Attorney for Healthcare: Similarly, this document designates someone to make medical decisions on your behalf if you’re unable to do so. This is another one where you’ll probably want to revoke your ex-spouse’s authority and appoint a trusted individual who understands your wishes.

Living Will and Advance Directives

Living Will: This document outlines your wishes regarding life-sustaining medical treatments if you have a terminal illness or are permanently unconscious.
Advance Directives: These may include instructions about pain management, organ donation, and other end-of-life care.

While your ex-spouse might still be the person you want to make these decisions, it’s essential to review your directives and ensure they align with your current wishes and circumstances. You may want to involve your children or other family members in these discussions, for example.

Wills and Trusts

Will: Your will dictates how your assets will be distributed after your death. After a gray divorce, you’ll likely want to remove your ex-spouse as a beneficiary and update the distribution of your assets to reflect your new wishes. This may involve naming children, other family members, or charities as beneficiaries.
Trusts: If you have a trust, you’ll need to update the beneficiaries and potentially appoint a new trustee if your ex-spouse was serving in that role. This is particularly important for revocable living trusts, which are often used to avoid probate and manage assets during your lifetime.
Why it’s critical: An outdated will or trust can lead to your assets being distributed in a way you no longer intend, potentially causing conflict and legal challenges for your loved ones.

Beneficiary Designations

Retirement Accounts (401(k), IRA): Ensure your ex-spouse is removed as the beneficiary on these accounts and that your designated beneficiaries are up-to-date.
Life Insurance Policies: Similarly, update your life insurance policies to reflect your current wishes regarding the distribution of death benefits.

Beneficiary designations on these accounts often supersede the instructions in a will, so it’s important to update them directly with each institution.

Timing and Legal Advice

While there’s no strict deadline for updating these documents, it’s important to do so as soon as possible after your divorce is finalized. Delaying these updates could lead to unintended consequences and legal battles if something unexpected happens.

It’s strongly recommended that you consult with an elder law attorney to guide you through this process. They can help you understand the specific laws in your state, ensure your documents are legally sound, and provide advice tailored to your individual circumstances.

Frequently Asked Questions (FAQs)

Will I lose my Social Security benefits if I divorce?

Not necessarily. If your marriage lasted at least 10 years and you remain unmarried, you may be eligible for benefits based on your ex-spouse’s earning record. This is true whether you reside in West Virginia, or elsewhere in the country.

Can I keep my ex-spouse on my health insurance?

This depends on the insurance policy. Employer-sponsored plans usually do not allow an ex-spouse to remain on the plan post-divorce. However, COBRA coverage may be available for a limited time, albeit at higher premiums.

Do I need to change my will immediately after filing for divorce?

It’s wise to update your estate plan as soon as you decide to divorce or separate. In some states, filing for divorce may automatically prevent certain estate distributions, but not always. A thorough review ensures your wishes remain protected.

How does long-term care planning factor into a divorce settlement?

Decisions on asset division can have a direct impact on Medicaid eligibility and the affordability of nursing home care. An elder law attorney can structure settlements to protect assets while preserving access to benefits.

How Hewitt Law PLLC in West Virginia Can Help Protect Your Assets and Secure Your Future

Late-life divorce can be a turning point that reshapes your financial security, healthcare options, and overall quality of life. By prioritizing elder law planning (based on the impact of the divorce), you can make wiser choices that preserve your independence and well-being.

At Hewitt Law PLLC, we understand the unique challenges facing older adults in West Virginia. Our integrated approach ensures that both your immediate divorce concerns and long-term legal strategies are handled with professionalism and empathy.

If you need help with any elder law issues in West Virginia, contact us today to set up a personalized consultation.