What happens to our e-pulse after death? Estate planning Anne Coventry is on the case
Published in 2018 Maryland Super Lawyers magazine on December 12, 2017
Online banking, cloud-based family photos, automated electronic payments: all convenient benefits of the digital age. For the users. Less so for their heirs.
“The way we used technology during life to make our lives easier can actually complicate how we wrap up a person’s financial affairs after death,” says Anne Coventry, an estate planning attorney with Pasternak & Fidis in Bethesda.
With a dad who spent more than 20 years as a public defender, Coventry eventually found her way to the law. When she got to William & Mary, she took a pivotal class on federal income tax from professor John Donaldson.
“He was such a fantastic professor that I wanted to take everything else that he taught,” she recalls. “Wills and trusts and family wealth. … This led me to estate planning, [which is] kind of a perfect mix of my father’s career path and my mother’s.” Her mother was a CPA.
Technology has dramatically changed the practice of estate law in recent years. Historically, Coventry says, the executor of an estate would notify the postal service to forward the deceased’s mail. “You’d start to build a picture of what the deceased owned and what were his debts, and how do we administer the estate to make sure that creditors get paid and that the assets can all be gathered and distributed properly,” she says.
That model is rapidly changing. “People don’t get their bills and bank statements by mail any more. They do them online,” Coventry says. “It’s possible for people to be completely lost trying to administer your will if you had automatic recurring payments coming out of a checking account that need to be shut off, but [no one knows] where the checking account is, because your statements come online.”
Simply giving loved ones a list of your log-in credentials to use post-death may technically be illegal. Those lengthy agreements that people seldom read before clicking “accept” typically include a prohibition against sharing passwords.
Coventry urges clients to specify in their wills who should have access, and to what.
“You may have dozens of accounts, and you may want your fiduciary to be able to deal with some of them, like email,” Coventry says. “But maybe there are other accounts that you would just as soon nobody knew about. If you’re a gamer, there may not be any reason to preserve your World of Warcraft.”
Even specific wording is not always a guarantee of easy access for an executor. “It’s very frustrating to try to deal with the internet companies on issues like that, because they’re not really set up to do customer service in that way,” says Coventry. “You have startup companies that are created by young people who think that they’re immortal and haven’t thought, ‘What happens when my customers die?’”
A few internet companies have come up with their own solutions. Facebook implemented Legacy Contact, which allows users to assign limited access to one Facebook friend after death or incapacitation. Google has a feature called Inactive Account Manager, which allows users to assign access to all Google accounts if they’ve been silent for a specified period of time.
But a more widespread solution is on the horizon. Coventry, who serves on the state Bar’s estates and trust law section council, helped push for Maryland to adopt the Revised Uniform Fiduciary Access to Digital Assets Act, which gives internet users the right to grant access to their accounts after they die or become incapacitated.
The legislation was enacted in Maryland in 2016, and other states are rapidly adopting it. The act represents a compromise worked out between technology companies and the estate planning bar, and was drafted by the Uniform Law Commission. The tech industry fought the original version of the act, which would have granted executors access to digital accounts unless a user had opted out.
“Even the ACLU didn’t like that, because they were saying, ‘Wait a minute. People don’t necessarily want their executor to see all of their emails,’” Coventry says. “You don’t keep every communication you’ve ever gotten by snail mail and every letter you’ve ever sent by snail mail. [But] it is possible to go back in time and look at every email you’ve ever sent or received since the dawn of Pac-Man.”
The revised version requires an opt-in by the user—either through instructions in a will or via online tools.
“If this law is enacted widely, it’s going to become easier for internet companies to simply create an online tool than it is for them to have to go and read people’s wills,” she says. However, she recommends that her clients also include wording in their wills. Under the act, if instructions in a will conflict with those left via online tools, the latter are the ones that count.
Though the times are changing, Coventry says the goal of an estate planner remains the same: “helping people plan ahead to save them money and headaches, and prevent disagreements.
“It doesn’t make the grieving go away,” she says, “but it certainly can help prevent adding to those struggles people can go through when they’re grieving.”