Brooklyn Bar Association gives tips for estate planning in the digital age

April 19, 2019 Rob Abruzzese

Daniel Antonelli (left), vice chair of the Trust and Estates Section of the Brooklyn Bar Association, invited attorney Robert M. Harper (right) to give a CLE lecture on estate planning and digital assets. Eagle photo by Rob Abruzzese

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Technology has had many intended and unintended consequences over the years and as it takes over more of our lives, trust and estate attorneys are taking more consideration of digital assets and what happens to our online accounts after we die.

Daniel Antonelli, the vice chair of the Brooklyn Bar Association’s Trust and Estates Section, has certainly taken notice.

“From what I see, there is a question as to whether you can get into people’s email accounts or social media accounts after they die, and for what reasons,” Antonelli said. “There is a distinction between digital assets in your iPhone, like photos, and emails, which are more of a communication than an asset. The law isn’t clear on what executors have access to and when.”

To help clear up some issues, the Brooklyn Bar Association hosted attorney Robert M. Harper, from the law firm Farrell Fritz, P.C., to give a continuing legal education lecture entitled, “Death Gets Digital: Your Password Won’t Expire Even When You Do,” at the bar association on Remsen Street on Wednesday.

“For attorneys who are drafting wills for clients it’s going to educate them about the best way to fulfill their wishes,” Antonelli said. “Do their clients want other people to read their emails? Maybe there are old love letters in there, or other sensitive materials, so maybe they do, maybe they don’t. If you specify in the will, that is your best chance at accomplishing your clients wishes.”

The two-hour lecture was an attempt to answer as many questions as attorneys who attended had and also help them to avoid some of the unanswerable questions. For many attorneys in attendance at the lecture, this is something that went from a hypothetical question just a few years ago to one that comes up often in their practice.

Antonelli recalled the first time he was litigating a will and wanted to gain access to a person’s email account to determine if the person intended something to be a gift left in the will or not. When he contacted Google to try to gain access to the account, he was denied.

“There aren’t clear answers for the questions surrounding the topic,” Antonelli admitted. “I’m working on a case against Facebook and Google where we’re trying to get information that we know they’re not going to give to us so we’re looking at potential discovery decisions. I don’t know if I’m going to win, but at least we can make some law and we’ll have an answer one way or another.”

Unfortunately, Harper didn’t have clear-cut answers either. A big part of the problem is that these issues haven’t been addressed by the courts before and have largely been completely ignored by both state and federal legislators.

“What is a digital asset?” Harper asked rhetorically. “The answer is not clear-cut. There are courts here in New York that describe digital assets as intangible property. That answer, in my view, leaves a lot to be desired. We have to be mindful of the fact that while the development of digital assets and technology is going full steam ahead, the law is not keeping pace. We’re only now finally getting cases that address digital assets in a trust and estates capacity.”

That doesn’t mean that Harper didn’t do his best to explain the current case law that is available and recommend best practices that he thought attorneys should follow to try to prevent issues from arising. He also passed along four “best practice” tips for estate planning in the digital age.

His first tip — advise clients to select fiduciaries who are comfortable dealing with digital assets. Second, draft estate planning instruments to address digital assets. Third, instruct clients to back up all data, email and any digital assets they can regularly so that they don’t need to be retrieved by another person after their death. Finally, suggest to clients that they attach digital assets in the names of their corporate entities rather than their own names when possible.