The estates and trusts world has taken notice of the importance of digital assets—there is no question about that. Depending on an individual’s circumstances, their email messages, files, cryptocurrency or similar assets may have great significance to their estate plan. Therefore, if an individual’s digital assets are something that advisors and clients alike need to consider for every estate planning matter, the estates and trusts industry as a whole needs to start to thinking about how to best plan for those digital assets from a legal, financial and technical perspective.
To learn more about this topic, I read the late Sharon Hartung’s novel Digital Executor: Unraveling the New Path for Estate Planning. Sharon was an engineer who spent many years working for IBM. She began writing about digital assets and estate planning after experiencing challenges administering her mother’s estate. I was drawn to Sharon’s work through her first novel Your Digital Undertaker: Exploring Death in the Digital Age in Canada, which is all about taking an information technology-based project management approach to estate planning. While Your Digital Undertaker is a great book for anyone who is completely unfamiliar with estate planning, Digital Executor is more geared towards advisors who have only just begun to interact with the issues necessitated by digital assets.
The crux of the book is its exploration of the meaning of the term “digital executor” relative to the digital assets of the testator’s estate. By way of background, a will can delegate different executors for different types of assets: for example, a literary executor may be appointed to deal with copyrights if the deceased was an author, or an art executor may be appointed to manage the testator’s artwork (i.e. if the estate contains a large quantity of artwork). The idea is that these distinct executors have specific skills or knowledge that will assist them in their specialized roles, and are appointed in addition to the “primary” executor who deals with the other estate assets.
Naturally, one might think that a “digital executor” should thus have exclusive domain over the testator’s digital assets. As the novel points out, there are numerous problems with this idea. For instance, consider that many people’s digital and non-digital lives are very much intertwined. This not only means, for example, that people tend to “do everything” from their phones (such as sending messages, listening to music and even tracking their health), but also that their physical assets are very much connected to their digital assets (for instance, through banking or investing apps). This is also amplified by the fact that with each passing year, and each successive generation of people, the average person’s digital footprint is getting larger and larger; naturally, this magnifies the role that digital assets play in one’s overall estate planning.
By way of example, in the 20th century, when a testator died, the executor would have been charged with the task of “going through their papers” in a home or work office and discovering information about the testator’s assets, liabilities and other affairs. While such a discovery process may still be relevant for some individuals today, in the 21st century most people’s email accounts would be the primary means of discovering such information. Indeed, email accounts contain all sorts of critical information: relationships with financial services (i.e. banks, insurance companies), outstanding billings (if, for example, the testator ran their own business or practice), or even information about other digital assets (e.g. if the testator held crypto with any third-party service provider), among many other things. In an increasingly environmentally-conscious world, it’s becoming far less likely that an individual will preserve this information on a piece of paper when an email account is simply more accessible. All of this is to say that if the executor is not able to access the testator’s email account due to a lack of planning on the testator’s part, then this could be a colossal issue for the estate.
As Digital Executor points out, the ability to access a testator’s email accounts isn’t just convenient; it’s essential. Therefore, email accounts of the testator are something that an executor would need to be able to access and manage, and accordingly are not something that should be limited to a digital executor. That’s exactly the argument that Digital Executor makes: the term “digital executor” is an invented one, as today’s executor is a digital executor and as such will need to be equipped to handle managing the testator’s digital footprint and its implications for the testator’s overall estate planning.
Of course, as the trusts and estates industry has begun to learn, a lack of proper planning can lead to being locked out of digital assets that could affect the overall ascertainable value of the estate (like email, as described above) or may themselves have an inherent value (like cryptocurrency). Such planning is important in many ways; even something like neglecting to cancel a testator’s monthly or yearly subscriptions to certain digital services can unnecessarily cost the estate hundreds (or even thousands) of dollars per year.
Digital Executor: Unraveling the New Path for Estate Planning is a great resource for helping advisors learn both the digital assets and overall estate planning questions they should be asking their clients. It’s no secret in any estate planning matter communication is key, and the increasing relevance of this topic will only continue to beget an increasing need for such communication.