On Wednesday, January 12, 2011, I presented a ninety–minute seminar titled “Estate Planning 2.0: Digital Property and Tech–Savvy Clients—Time to Reboot Your Practice” with Karin C. Prangely at the 45th Annual Heckerling Institute on Estate Planning in Orlando, Florida. We talked about the intersection of technology with estate planning, estate and trust administrations, guardianships, and conservatorships.
The theme of our presentation was that technology has changed the way we interact with people and transact business. When we cross over from physical interactions and transactions to digital interactions and transactions, we add a layer of: (1) additional contracts and Terms of Service agreements; (2) conflict of laws issues dealing with online service providers in other states and countries; and (3) we add new challenges for family members and fiduciaries trying to find and access important information because the digital world is protected by passwords and encryption.
Beyond the digital world merely being a parallel to our physical world’s interactions and transactions, there are entirely new types of valuable or important property that only exist in the digital world. Some of this digital property has financial value, and some has sentimental value.
The most important point of our talk was that planning ahead for passwords, online accounts, and digital property is essential: (1) to arrange for full access to digital property; (2) to keep costs down; (3) to provide for a smooth administration; and (4) to ensure no property is overlooked for an inventory or estate tax return. If you haven’t planned ahead, computer security experts can access and recover many types of digital property—even more than you may initially think is possible. But, it can be a time–consuming and expensive process. And, a strong password plus strong encryption can make it practically impossible to access a person’s data if you don’t know the password. In addition, many types of online accounts, including free e–mail accounts and other free online accounts, typically cannot be fully accessed without knowing the person’s password, and many of the online service providers will not reveal an incapacitated or deceased person’s password to the person’s fiduciaries or family members under their policies or Terms of Service agreement.
I wrote a 69–page outline for this seminar that describes how to identify, find, access, value, protect, and transfer important digital property in a guardianship, conservatorship, probate estate administration, or trust administration. Also included is a seven–page questionnaire to use for gathering information about valuable and important passwords, online accounts, and other digital property. A copy of the Table of Contents from my outline is attached to this posting, and a copy of the fully outline is available upon request.