A twitter follower recently sent me a note about a Smart Money article that stopped me dead in my tracks. The author, Tania Karas, was recounting an interview of a Missouri estate planning attorney talking about a client having to hire a hacker to get her husband’s computer open to get access to all the electronic files.
My twitter friend, Gene Deems, (@genedeems; but more about Gene in a moment) wanted to know my thoughts. At the time, I thought I had all my clients lined up to answer all the questions in the article. But the more I thought about it, the more I realized I probably didn’t.
We routinely have existing clients who come in for a bi-annual legal checkup who have done everything from forget to put the new car in the trust to forget to tell me about the $1 million life insurance policy they just purchased. So the more I thought about the article, the more I thought we need to revisit the issue.
As more and more of our lives are put online, the question then becomes how to secure and transfer someone’s virtual estates — the body of nontangible, digital assets people create and store on their computers and the Internet. Smart Money tells us that 36 percent of adults over age 45 now do their banking on the Web, quoting a source from Pew Internet & American Life Project, and millions of people store some financial records online, which are often locked behind myriad user names and passwords. The article talks about how lawyers like me have to walk clients through a consideration of digital assets in their estate plan. As the article says, if we don’t, it becomes an oversight that can result in real-world losses to beneficiaries.
Digital assets are everywhere to such an extent you forget about what they are. They range from things with obvious financial value (online bank and brokerage accounts, and Web-based businesses) to less obvious but still valuable properties like domain names, blogs, Twitter accounts and social media pages. (As an aside, as I have grown the firm, we have created a number of names. So no client gets left behind, we continue to forward old addresses to the new account.) Merely accounting for these assets after the owner’s death is a challenge. Responses between spouses when it comes to talking about it can get testy. (“Why do you want to know about the life insurance — do I have to be careful walking down the stairs?”) This gets worse if the client paid his bills and filed his tax returns online. But without log-in information, access to those Web accounts and services may require hiring a computer-forensics expert or obtaining a court order. What happens to all of your e-mail and other digital assets when you die? The article quotes financial pros saying not knowing can be costly. And the problem isn’t limited to assets. Without proper documentation, a personal representativemay have no way of knowing how to cancel the cable service or stop automated bill payments.
(A client looking for passwords)
I have clients wrestling with on-line video providers well after the death of the relative because no one knows the password to give to the video provider. And in fairness, the video providers are only protecting themselves from unscrupulous viewers trying to hijack an unsuspecting account.
Complicating matters is that accessing the deceased’s online account (even that of a spouse or parent) may run afoul of terms of service agreements — and federal antihacking laws. While the problem is only getting bigger, just a handful of states have passed legislation related to digital-property management after death. That large legislative gap, meanwhile, has lead me to be digitally vigilant as never before, creating step-by-step instructions for how heirs can access and transfer virtual properties after a client’s death. For starters, we now asks clients to take inventory of all their digital accounts and store an updated list of passwords on a flash drive, locked in a safe. There are also websites like Legacylocker.com and AssetLock.net, which enable users to release account information to designated beneficiaries after their death. Taking even a few modest actions now can keep your assets from getting lost in cyberspace. It can be really a pain to visit there. Just ask my assistant.
(Password, Password?)
So do the smart thing. Act now. Get the list. Put it where it can be found. If you need help, call us. I’ve got experts who can help.
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Gene Deems is an e-Gov and online services expert. He has been successful in internet business, publishing, real estate and marketing. He can be reached on twitter @genedeems. Tania Karas’ full article can be read at sm.wsj.com/N6mUAr .
If you’re interested in estate planning, business law, or just being prepared, find out how to reach us at our website: TheFisherLawOffice.com. You can also contact us at Facebook.com/FisherLawOffice, on Twitter @thefisherlawoffice, or at LinkedIn.com/in/FisherLawOffice. If you come here just because we sometimes incorporate kittens into the blog, get your fix at the Arts and Cats Movement. Tell Dorrie and Audrey I said hi when you’re there.
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