Estate Planning and the Paperless Client

by Emilee H. Scheeff, Esq.

With more and more people going paperless and increasing their online presence, new issues are arising in estate planning and administration. It is becoming increasingly difficult for the person in charge of administering the estate to locate assets and pay bills of the deceased since the statements and bills no longer arrive in the mail. Previously the personal representative would primarily monitor the decedent’s mail in order to help determine the assets and liabilities of the decedent, but with people going paperless it is becoming increasingly difficult to locate assets and liabilities. This challenge is not only faced by the personal representative of an estate but also by the surviving spouse who is attempting to pay household bills.

For example if the bills all go to the email of the deceased spouse and the surviving spouse does not know the password, then the surviving spouse can have trouble locating the information needed to pay the bills and keep the lights on at this trying time. In addition to locating the decedent’s assets and liabilities, a decedent’s social medial accounts such as Facebook, Instagram, and Twitter need to be dealt with upon death. In planning for the increasingly paperless client, it is important that lawyers include a provision in the client’s Will addressing digital assets and advise their clients to keep a list of passwords and accounts in a location where the personal representative or surviving spouse could easily locate it.

First of all, it is becoming increasingly important that good estate planners take into account digital assets when doing an estate plan. The primary way that this is done is by including a provision addressing digital assets in their client’s Wills. This is a relatively new development as people have previously not had many digital assets to deal with in the estate context. It is becoming increasingly important that digital assets be included in one’s estate plan as the population obtains a greater online presence and moves toward going paperless.

It is also important that a digital asset provision be included since there are no provisions in the Alabama Code dealing with these types of assets. As such, it is very important that the Will contain a digital asset provision to ensure that the personal representative has the authority to access and manage these assets. Additionally, it is also increasingly important that your Durable Power of Attorney include a similar digital assets provision for the same reasons.

In addition to including a digital asset provision in the client’s Will and Power of Attorney, it is increasingly important that a client keep a list of passwords and accounts in a place where your personal representative or surviving spouse could access them. The main account that I foresee the surviving spouse or personal representative needing access to is the email account of the deceased.

With the population becoming increasingly paperless, most bills and bank statements are delivered to an email address. If the personal representative or surviving spouse is able to gain access to the email account, then they will be able to retrieve bills and locate monthly statements from banks and other institutions without having to go on a scavenger hunt to locate all of the decedent’s assets. In addition, they will likely be able to reset the passwords of other accounts such as the individuals online banking, Facebook, etc. as the new passwords or links are sent to the email address on file. Having access to this one account would enable the surviving spouse or personal representative to access the majority of the decedent’s information and greatly assist the individual in locating bank accounts and other financial assets.

Now, where this list is kept is of great importance! The list must be kept in a very secure place that the surviving spouse or personal representative could gain access to upon the individual’s death. I cannot over emphasize how important it is that this list kept secure because if this it were to fall into the wrong hands it could allow someone to do a lot of damage.

One place that I typically recommend keeping the list is in a safe deposit box at the bank. If the spouse is a joint owner of the box, the spouse would be able to walk into the bank and obtain the list without waiting on the Will to be admitted to probate, and the personal representative would have the authority to access to box upon receiving letters testamentary from the Probate Court. This location would easily protect the list from falling into the wrong hands while leaving it accessible to the desired individuals.

In putting together your estate plan, keep in mind that your digital assets should also be considered and select an attorney who will help you plan for the disposition and management of these digital assets.