We all need a DNA estate plan
If there is anything in this world that should be abundantly clear to us all, after 19 months of a global pandemic and nearly five million dead (including 700,000 Americans), it’s that we all need to think about making sure our affairs are in order.
And, for The Legal Genealogist and every other person who’s ever taken a DNA test, that means making sure someone can access and continue to manage and use our DNA results after our time is up.
Which — in combination — ought to remind us to do something right now, if we haven’t done it before, because we truly have no way of knowing when our time will be up.
This has always been an issue in DNA testing, since we’ve always advised people to “test the oldest generation first.” That only makes sense, particularly in the context of autosomal DNA testing, when every generation is impacted by what’s called recombination: the random jumbling of genes that occurs before half (and only half) of those randomly-jumbled pieces gets passed on by each parent to the next generation.1
But the very fact that we have tested the oldest members of our families has long meant that we needed to plan for the future, and for access to those results, when the inevitable happened and we lost those oldest members of our families. That planning only takes on an additional degree of urgency in these past months, as we’ve tried to wend our way through a crisis that disproportionately impacts those oldest members of our families … often including ourselves.
There’s no question but that the vast majority of those who test want their results to be available and accessible forever to their family members and especially to the family genealogists who’ve often cajoled them into testing and even paid for the tests. So how do we make sure this is done? In other words, how do we do estate planning for our DNA results?
This isn’t a new problem, and I’ve written about it before.2
So… how to address this?
First, we need to think about who’s available to manage our DNA results and any remaining sample held by a testing company after we’re gone. It may be that the best choice isn’t a family member — we all know how many of them roll their eyes when we talk about genealogy. It may be that the current and future administrators of a DNA project might be a better choice. Our results, after all, aren’t just important now. They may be even more important 100 years from now. So we need to think long term.
Second, we need to think about how to document our choice. There are some options:
• The most permanent, most powerful, most effective way to handle DNA results for the future is to write something specific into our wills.3 Just as we say who gets the silver and that bank account, we can say who gets the DNA. If we do have a will and we don’t specify, then technically whoever is named in the residuary clause4 gets this.
• If we already have a will and haven’t said anything about our DNA, then we can execute a codicil.5 That’ll be a lot less expensive than redoing the whole will, and as long as it’s done the way our jurisdiction’s laws specify, it’s as binding as the will itself.
• We can at least execute some sort of beneficiary form — something in writing and notarized that says what we want done with our DNA results.
Because if we don’t leave a will that says what we want, and haven’t documented our choice in any other way, our heirs may end up fighting about this… or, worse, the fact that we even have DNA results may simply be forgotten until the day arrives when somebody needs access to our data, and there’s nobody left with the authority to make a decision.
Now it would really make life easier if all the DNA testing companies had built-in systems for testers to say who gets control of their results when their time is up. And — sigh — even now only one DNA company has done anything about it.
Only Family Tree DNA provides a system for testers to designate someone to be “the sole beneficiary to (my test kit), my Stored DNA, DNA Results, and FamilyTreeDNA account, to do all things required. For that purpose my beneficiary may execute and deliver, or amend, correct, replace all documents, forms, consents or release, tests and upgrades, and may do all lawful acts which may continue my involvement with FamilyTreeDNA.com.”6 And even Family Tree DNA warns that the beneficiary form may not be recognized under the law of every jurisdiction.
If our testing company is any of the others — AncestryDNA, 23andMe, MyHeritageDNA, LivingDNA, etc. — we don’t even have that much of a head start.
Bottom line: we all need to think about what we want done with our DNA test results and any remaining DNA sample once our time is up.
And we shouldn’t wait any longer in doing the estate planning we need to do.
Because — estating the obvious7 — that could be any time at all.
Cite/link to this post: Judy G. Russell, “Estating the obvious…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 3 Oct 2021).
SOURCES
- ISOGG Wiki (http://www.isogg.org/wiki), “Recombination,” rev. 14 Apr 2019. ↩
- See Judy G. Russell, “DNA in a time of crisis,” The Legal Genealogist, posted 5 Apr 2020 (https://www.legalgenealogist.com/ : accessed 3 Oct 2021). See also ibid., “Estate planning for DNA,” The Legal Genealogist, posted 20 Aug 2017, and “DNA ownership,” The Legal Genealogist, posted 14 Sep 2014. ↩
- We do have wills, right? Right??? ↩
- That’s the clause that says who gets “all the rest and residue of my estate.” ↩
- Law geek speak for an amendment to a will, done with the same formality as the will itself. ↩
- You can find this under Account Settings -> Account Information -> Beneficiary Information. ↩
- Yes, pun absolutely intended. ↩
Yes, you have written about it before… but now, in these times, I *get* the importance of the message and will be acting upon it.
While I have a will, I was remiss in specifying all things DNA and genealogical documents that are not available in any ancestry or family searches. I assume my executrix knows what I would want BUT to make it easier for her, I will spell it out, so she has no question.
Thanks for the reminder.
I recently update my will and when I asked my attorney about adding my DNA raw data files to the list of assets he didn’t know what I was talking about. Trust and estate planning attorneys may need some education!
That’s our job as genealogists all the time!
If we are the beneficiary of someone else’s DNA, don’t we need to also include what happens to their DNA when we die? Just like if I inherit grandma’s lamp, MY will (or trust) needs to say what happens to it when I die. Otherwise my Executor/Successor Trustee can do whatever they want with it.
Yes, that’s why I said we need to plan for the long term.
Perhaps you have addressed this before, but what are your thoughts on a traditional will versus a trust? Right now, my wife and I are the trustees of a family trust and the will (one paragraph long) just says that anything and everything that is not already part of the trust becomes part of the trust after we both die. Since that is the only trust document that likely would become part of the court records, it would not leave much genealogically speaking for our descendants to go on. (Of course, the lawyer that created the trust for us viewed that lack of public record as being a feature, not a bug.)
As a matter of legal utility, you need to listen to the lawyer licensed to practice in your jurisdiction. As a matter of genealogical utility, there’s no doubt researchers in 100 years will curse us for this.
” We can at least execute some sort of beneficiary form — something in writing and notarized that says what we want done with our DNA results.”
I had an instance of the notary making a mistake, at least I think so, not sure. Is the notarization still valid if the notary does do something wrong?
It depends on what the error was.