Death and Digital Assets

When our online footprints outlive us, estate planning gets complicated

By Andrew Brandt

While the digital age has made most things easier, estate planning isn’t one of them. The opposite, in fact. 

“It’s not as easy as it used to be,” says Paul Gantner, an estate planning attorney at Amen, Gantner & Capriano in St. Louis. “People used to draft their will or trust, and that was all they needed.” 

“As the younger generation—who has grown up with a digital footprint—starts to die, [estate planning] will become more of an issue,” adds Melinda Ward, an estate planning attorney at Van Osdol in Kansas City. 

Digital assets pose multiple threats to an individual’s estate plan. As businesses have gone paperless, it has become more difficult for fiduciaries and attorneys to track down bill and bank statements, usernames and passwords.

And if they do manage to recover online account information, they may not even have the right to access it—banks and custodians rely on terms of service agreements, which often prohibit password-sharing.

In the past, says Patrick Conner, an estate planning attorney at Husch Blackwell in St. Louis, “trying to track down assets, we used to just intercept mail. Now, everybody is getting electronic statements, so it’s a lot harder to know what assets they have. And having the ability to access those after someone passes on is a challenge.” 

Ward says she had an author-client who had a book stored on the cloud instead of in a bottom desk drawer. “We had a hard time getting it,” she notes. 

“We used to talk about, if your house burned down, what would you grab if you could only grab one item? People would say photo albums,” says Gantner. “But now most people are keeping their photos on the cloud or electronic database. If you pass away without passing along the information of how to log in and download those—or without downloading them to an external drive—you have to just run into that fire, so to speak.”

Ward recommends clients create a list of digital accounts and passwords, store it in a secure place, and update it every two years. “A lot of financial advisers have digital vaults that you can log in to,” she says. “You just have to give the person one password in order to get all of the other information. … We have provisions in our wills and trusts that say the trustee has access to that information after you’re disabled or diseased. I’ve not had to enforce it yet.”

In August 2018, Missouri passed the Missouri Fiduciary Access to Digital Assets Act. The bill will, hopefully, allow agents and fiduciaries access to passwords of the deceased—even where terms of service agreements say sharing of passwords isn’t allowed. 

“Anybody with a digital account can allow or prohibit the disclosure of their assets to a fiduciary in a will, trust or other record,” Gantner says. “It will even override the contrary provision in the terms of service agreement.” 

The bill does state that, within the will, trust or power of attorney document, you do need to expressly grant authority to log in to the deceased’s accounts. “Since this is a brand-new law, it’s something that people will have to have reviewed by their attorney to see if it does make sense for them,” Gantner says.

Though there has been a push for many services to go paperless, Conner notes that estate planning documents are still preferred on paper. “People want the originals,” he says. “In Missouri, you have to have a copy of the original will. If you don’t … you essentially don’t have a will.”

But firms like Gantner’s are aiming to make all of their copies paperless. Clients are offered flash drives, dubbed “legacy cards,” containing copies of all their important estate files—“so they’re not locked away in a safe deposit box in a bank you can’t get to until 9 o’clock on Monday morning.”

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