After 26 years of marriage, it suddenly dawned on me that I was in a mixed marriage. I am married to a man who is technologically challenged and without a clue as to what a timeline is or that you can “poke” someone on Facebook. I mean really, the man still owns a safe deposit box. I, alternatively, can post, tweet and download music with the best of them.
This realization came to me after reading an article in the Estate Planning Council of Northeastern Pennsylvania’s Summer 2014 Newsletter. The article, entitled “Digital Death: Purgatory for the Unplanned Decedent” was written by Holly Isdale, the founder of Wealthaven, a consulting and family office practice located in Bryn Mawr, Pennsylvania.
In her article, Holly asked this question, “If you died last night, instead of being able to read this article, would your spouse, your partners, your clients, have been able to access the information needed to inventory, value and transfer the digital assets of your estate?”
I thought about it, and the answer in my case is an unfortunate no. I grabbed a pen and paper and made a list of my online presence: a bank account; an email account; several credit cards; medical records; Facebook; Pinterest; Twitter; Instagram; LinkedIn; iTunes; Amazon; and Audible. I am not even confident that is the entire list.
I access any number of these accounts or services on an almost daily basis. When my husband starts to tell me about a news story or event, chances are I have already read about it on my Facebook page. I post pictures of our vacations and important life events to Facebook, Twitter and Pinterest. I share that delicious looking meal on my Instagram account. My credit card and bank statements are electronically sent to my email address; no paper statements for me. My Amazon and Audible purchases are automatically charged to a certain credit card. Monthly charges for my son’s ever important Netflix and Xbox Live are tied to that same card. I own an iTouch, an iPhone, an iPad, a Kindle and a MacBook Pro. All require passwords that only I know.
My husband has no interest in social media, owns only a smart phone (obtained not that long ago and involved me prying his flip phone from his clenched fist) and maddeningly types and texts with his index fingers. When finding me looking through boards on Pinterest, he is perplexed. Of course many people are perplexed by Pinterest, so perhaps that is not the best example. He needed assistance in setting up his LinkedIn account and created the account only under protest during a recent job search.
I have been involved with estate administration since 1983 and I know the drill; list all your assets and be sure your loved ones know where they are located. But it seems that much like the doctor who is last to admit they are not well, I have not provided any of the information regarding my online life to anyone. If faced with my demise, it would never occur to my husband that any of these services or accounts would need to be addressed.
The generation that is the majority of my current client base does not present this problem. This group has parents that were adverse to the direct deposit of their social security checks. Soon, though, this will change and an increasing number of clients will have a list of accounts or services similar to mine. Locating, accessing, inventorying and valuing these online assets present distinct challenges. Even being in possession of the necessary passwords will not guarantee access to the information. Documents are stored in electronic files rather than in file cabinets. Photographs are uploaded to web sites rather than printed on paper.
As an estate administration paralegal I know that the laws governing fiduciary access to these digital assets are in need of revision. Nationally, the Uniform Law Commission has responded to the growing significance of digital assets in the modern world. It has drafted the Uniform Fiduciary Access to Digital Assets Act which provides states with model legislation to deal with the many legal issues that complicate access to an individual’s digital assets in the event of their incapacity or death. “Fiduciaries” are the personal representatives of a deceased person’s estate; guardians and conservators; agents under a power of attorney; and trustees.
But the new Uniform Act will not have any effect in Pennsylvania until a state version is enacted by our state government. Hopefully the Pennsylvania legislature will move quickly to fill this important gap in our laws.
In the meantime, I will be looking to inventory my own online presence and the passwords required; at least it is a start. Now the question is where do I keep this valuable, super top secret information? Maybe my husband still has room in that safe deposit box.
