Estate planning with the rise of virtual machines

We’re thrilled to feature our very first guest blogger, one of Qwill’s advisors, Professor Gerry W. Beyer! When it comes to blogging, as the editor of the most popular estate planning blog in the nation, Gerry is no stranger. And having been inducted into the National Association of Estate Planning Councils’ Hall of Fame in 2015, you can be sure he knows his stuff.

This week, Gerry walks us through his tips for how best to use technology when it comes to preparing an estate plan. And while his post may leave you feeling like a robot revolution is inevitable, rest-assured that Q has got your back.


Technology has invaded many parts of our lives and estate planning is no exception. Within just the past year, a Michigan court probated an unwitnessed will written on a smartphone, an Ohio court probated a will handwritten and witnessed on a tablet computer, and three states have enacted legislation validating electronic wills. Internet sites and smartphone apps, such a Qwill, also exist allowing a person to create estate planning documents from the comfort of their own homes or businesses.

Not all use of technology is new, however. From Captain Kirk leaving a video to watch upon his death in an attempt to get Spock and McCoy to work together during an emergency (in the 1968 Star Trek Original Series episode The Tholian Web), to Rodrigo Rosenberg (in May 2009) making an 18 minute video to be viewed upon his disappearance that allegedly named his murderer, people have wanted to “speak from the great beyond” to their family and friends.

As early as in the 1970s, attorneys began video-recording will execution ceremonies to help assure client wishes regarding at-death distribution of property are carried out by preserving evidence of the will execution ceremony and its important components (e.g. the condition and appearance of the testator, the presence of witnesses, an accurate reproduction of the exact document which was signed, etc.). Although video-recording the will execution ceremony is not common practice, the potential of this technique in appropriate circumstances must not be overlooked.

Despite the significant benefits of video-recording a will execution, there are several potential problems. In some cases, you can take steps to reduce or eliminate these problems, while in other situations the prudent decision would be to forego recording the ceremony. Although a situation may otherwise seem appropriate for recording, you may be hesitant to expose yourself to the court for critical evaluation. An accurate picture may lead a judge or jury to conclude that you actually were incompetent or unduly influenced. Similarly, bias against you may exist because of your outward appearance: your age, sex, race, disability, or annoying habits may prejudice some individuals. There is also a possibility that someone might alter the video. The alteration could be accidental. Careful storage procedures, however, greatly reduce this risk. Intentional alteration through skillful editing and dubbing may also occur, although a video-recording is more difficult to alter than a written document.

Beyond creating wills and probating them, another aspect of the estate planning-technology interface is what happens to digital assets upon death. Digital assets are electronic records (think binary 1s and 0s) in which you have a right or interest. Examples include e-mails, text messages, photos, digital music and video, word processing documents, social media accounts (e.g., Facebook, LinkedIn, Twitter), online financial, utility, credit card, and loan accounts, and gaming avatars. Who can gain access to this material after your death?

The law in this area is still under development. However, the ability of a court-appointed executor to gain access to digital assets is now governed in almost all states by the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).

If you use an online tool, that is, the custodian’s service that allows you to provide directions for disclosure (or nondisclosure) of digital assets to a third person (e.g., Google’s Inactive Account Manager and Facebook’s Legacy Contact), those instructions will prevail. Second priority is given to the instructions you provide in your will. If you did not provide instructions through an online tool or your will, then the service provider’s terms of service agreement (the “I agree’ button) will govern the rights of your executor. Typically, these provisions will prohibit access by third parties.

If you authorize access to the contents of electronic communications, the executor can follow the procedures in RUFADAA to view the contents of your e-mail messages, text messages, etc. There are many reasons you may want your executor to have this type of access.

  1. Many people forego paper statements for financial accounts such as bank accounts, retirement accounts, and brokerage accounts. Your executor may seek access to the contents of your e-mail messages to ascertain where these accounts are located and to gain the information necessary to complete the estate inventory, pay bills, and distribute the funds appropriately. Likewise, an agent or guardian may need this information for similar purposes.
  2. Many people forego paper statements for utilities, credit cards, car loans, and home mortgages. The executor may need to give notice to and pay these creditors and thus needs access to e-mail messages to determine the names of the creditors and the amounts owed.
  3. Some digital assets like domain names, customer lists, manuscripts, and compositions may have significant economic value. The executor needs access to these assets for management, inventory, and distribution purposes.
  4. Some digital assets like family photos and videos do not have monetary value but have great sentimental value and need to be preserved or transferred to the proper heirs or beneficiaries.

On the other hand, you may not wish to have others read your e-mails and texts. Perhaps they involved discussions with out-of-marriage hook-ups, criminal activity, or are brimming with adult recreational materials.

Even if you do not address digital assets in your will, your executor may nonetheless get access to the catalog of electronic communications (e.g., the name of sender, the e-mail address of the sender, and the date and time of the message but not the subject line or the content) as well as other digital assets (e.g., photos, videos, material stored on the user’s computer, etc.).

Whether you think adding technology into the estate planning and administration process is a good or bad idea, it is already here and is likely to invade the process even more in the years to come. It is too late to stop Skynet from being built. Prepare yourself now and take advantage of the potential benefits it has to offer. If you are not ready for the intrusion of artificial intelligence into estate planning, you won’t know what to do when the response to your inquiry is, “I’m sorry Dave, I’m afraid I can’t do that.”

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