By Jennifer L. Zegel, Esq, LL.M., TEP and Sharon Hartung, Captain (Ret’d), TEP
The pandemic has not only accelerated the conversation about wills, estate planning, end-of-life wishes and funeral preferences; it has also accelerated the use of technology
It was only last month in the Bloomberg article “Supporting Your Clients’ Digital Legacy” that Jennifer and Sharon were discussing skyrocketing online relationships with retailers, financial institutions, and the government and how these engagements have changed estate planning by introducing a new class of assets called digital assets, which further challenges the role of the fiduciary (e.g., executor, trustee, attorney) given there is frequently no longer a paper trail to follow after a death. That reality just became a whole lot more accelerated as the COVID-19 pandemic unfolds.
In the blink of an eye things changed across every aspect of our lives. If it wasn’t already, technology has become an essential service. From an estate planning perspective, the collective surge of interest in wills, estate planning, incapacity planning and business succession planning comes with good reason. The topic of wills and end-of-life planning becomes ever more prevalent as the gravity of the pandemic touches us directly. Our courts and legal system, traditionally paper intensive, are now faced with how to deal remotely with in-person processes. And, never before could we have accepted the idea of compassionate engagement with the sick and elderly via tablets, and that funerals would be conducted via video conferencing. But now, technology assists with our compliance with social distancing, which is likely to be our norm for the foreseeable future.
Jennifer and Sharon, members of the Society of Trust & Estate Practitioners (STEP), are leaders in the Global Digital Assets Special Interest Group. As colleagues they connect regularly on project collaboration. By the nature of the globally represented group, Jennifer and Sharon were already connecting virtually, so the idea of connecting digitally during the pandemic was business as usual. But the subject of their recent conversations was new. Discussions now reflected on how each were dealing with operating in the new paradigm, as well as the challenges facing the estate industry in the COVID-19 world. With events like funerals and gatherings completely changed due to the requirements of social distancing and reduced gathering sizes, their conversations turned to the impact on another important event––Mother’s Day. Jennifer and Sharon respectively learned through recent conversations that their careers in the estate industry were not only influenced by the death of their respective mothers, but that their individual experiences dealing with those deaths ultimately led to their focus on the digital side of death.
Jennifer’s Story – The book manuscript that vanished at death.
In the weeks following her death, I searched endlessly throughout the house for the manuscript. I crawled through her computer and opened every file on her hard drive and loaded every memory stick my mother had tucked away into the backs of desk drawers, but the manuscript was nowhere to be found. Neither did her journals yield a hint of where it might be, nor could I find her research notes. I then checked her caller id and phone logs to see if I could figure out if she’d sent it to a publisher, but there was no trail. Although I was convinced the book existed, it had vanished. It pains me to think of the valuable insights, stories, and lessons that I could have shared with my children from the woman they never met that are now gone forever.
Had she understood the impact of the emerging digital era and the importance of sharing information about the storage of her notes and records for the book, I may have been able to fulfill her wish of publication. Who knows, there may have even been income generated from the sale of the book, but the loss wasn’t about the money, it was about the sentimental value the book represented. My mom’s story is not new, but it is still relevant. Although it’s been fifteen years since her passing, the estate industry is only beginning to realize the importance of our digital lives in the estate planning process. That experience helped shape my career by realizing the importance of estate planning and organization of even the simple things.
Sharon’s Story – The journey didn’t start with technology as you might expect.
In 2015, when the RCMP knocked on my door one beautiful spring day, the last thing I expected to hear was that my mother had died. I thought the police knocking on your door was just a TV thing. Before they left they encouraged me to call family and friends for support, but I was lost with no idea where to begin. I didn’t know the first thing she would have wanted. We’d never talked about it, and she died without a will.
After making the necessary phone calls, I had more well-intentioned suggestions than I could handle. As a retired officer from the Canadian military, and with 30-plus years of experience in IT project management, even I was overwhelmed. But, adrenaline kicked in and I mobilized setting up a command post in my dining room. That’s what project managers do, isn’t it? We plan things. When I finally got access to her condo, I collected bits and pieces of paper that held the trail of what may have been my mom’s wishes. Although these were just clues as there was nothing documented and dated. I had to guess at what she would have wanted.
In project management lingo, I realized I was handed a troubled project, many of which I handled before during my days at IBM, but this was different. It was an estate project, and it was personal. As I unravelled her estate, I realized how we generally still haven’t figured out how to talk about death, and I came to appreciate the big job of the executor, a role which can span years. As I worked through the process, it didn’t take me long to conclude that things are going get really interesting when we deal with our digital lives and digital footprints.
My real “aha” moment came when I thought about my own estate. As my mom’s executor, I relied on her paper trail, but given that I’ve digitized most aspects of my life at work and at home, my executor would be stumped in the absence of pre-planning, an estate binder, or a conversation, let alone a paper trail. My mom had left a small digital footprint with only one email account, but I have dozens of assets that are only virtual, which range from documents and photos to loyalty points. Given their pure virtual nature how was my future executor supposed to know I had these digital assets? I hunted extensively for a basic-how-to-manual but everything I found was written for the pre-digital world.
So, I dealt with my mother’s death the same way I dealt with any military or IBM project: I took everything I’d learned and created a simple guide to getting your affairs in order with a side of digital. It’s basically the list of questions I wish I could have asked my mom, but in Your Digital Undertaker –– Exploring Death in the Digital Age in Canada, I provide guidelines and resources on how to work with your loved ones to get the answers in advance.
The unintended consequences of the pandemic on estate planning digital assets upon incapacity and death.
Although, Jennifer and Sharon have two different stories, they share a common bond in their experience of how each of their mother’s death influenced their career path. The pandemic has already impacted every industry, and more than ever we are dependent on technology for online shopping and our personal connections through video conferencing. Companies will innovate and the marketplace will evolve as a result of this new reliance, and we predict this technological dependency will also cause an overdue estate industry disruption. COVID-19 just accelerated our client’s engagement with technology which will re-ignite the digital topic and transform philanthropy and estate planning.
Just as estate planners are learning about digital assets, testators (will-makers) have to take control of pre-planning if they want their wishes and preferences honored. The digital age is marshaling the need for tighter integration between estate planning and administration, and it is no longer as simple as letting the executor figure it out. The estate lawyer and their testator-client must spend time assessing risks, educating the executor and leaving more detailed guidance and instructions beyond the will.
And, so goes the story for every element of the estate administration process; because our physical lives are intertwined with our digital lives, estate planning in the pandemic world and digital age needs a reset.
This Mother’s Day, as we reflect on where we are in today’s world and what the future might bring, we encourage you to get out in front of your family’s estate planning.
Sharon Hartung, Captain (Ret’d), TEP, is the founder and principal of Your Digital Undertaker and has over 30 years of experience in IT management, project management and consulting. She is the author of the recently published Your Digital Undertaker — Exploring Death in the Digital Age in Canada. Sharon is a Society of Trust and Estate Practitioners (STEP) member and committee member of the STEP Global Digital Assets Special Interest Group. Sharon is reachable at www.yourdigitalundertaker.ca, and Twitter @UndertakerTech.
Jennifer L. Zegel, Esquire, LL.M., is the Practice Leader of Kleinbard LLC’s Trusts and Estates Group. Jennifer maintains a traditional estates and trusts practice but is unique in that she has a special focus in estate and business planning and the estate administration of digital assets, a fast growing and increasingly complex area. Jennifer co-created the Digital Planning Podcast (DPP), which is dedicated to exploring all things digital in connection with estate planning, business planning, and estate administration. Jennifer is a Society of Trust and Estate Practitioners (STEP) member and committee member of the STEP Global Digital Assets Special Interest Group. For more information on Jennifer, The Digital Planning Podcast, and Kleinbard LLC visit the Firm’s website at www.kleinbard.com.