Information You NEED to Know

by | Jul 15, 2022 | Uncategorized | 0 comments

As you know, DCS has been helping you and your clients catalog online accounts and digital assets, which records their directives. And over the last few years, innovators and custodians have created new asset types and account holders for data disclosure options. 

But for this article, we want to highlight the impact of new digital assets on the estate plans and provisions YOU prepare. The words you create have meaning and affect a trust or estate’s settlement process. With innovation, the need for necessary wording can also evolve. Below are some areas you should consider updating based on the services and features offered to your clients…AKA, the Custodian’s account holders.

New Innovations:

Over the last few years, we’ve seen the quick expansion of DNA discovery sites like Ancestry.com and 23andme.com. They’re fun and exciting, with users having insight into their heritage. Families get together, take a saliva swab, send it in for analysis, and in a short time, receive their results back. They can learn where their families come from. But many of these services offer the ability to learn about unknown relatives. Cousins learn about new cousins in far-off places—the existence of aunts and uncles. Or perhaps someone was an egg or sperm donor, never intending to be known. Children have learned about their biological parents and vice-versa. But one discovery can lead to problems for estate plans…the unearthing of someone who may lay claim to an estate they never intended to receive.  

The wording in the documents needs to be precise to acknowledge who is to receive assets. Terms like “children,” “biological,” and “known” with regards to relatives and inheritance are now more critical than ever. One might say language could also be written to exclude unknown or undiscovered parties. 

A simple error can create significant disruption if a child born 50 years ago and never had a relationship with the decedent now lays claim to their estate. Not only will this distract financial assets, but it may also pose emotional stress on loved ones and heirs. 

New Rights of Image Use

Innovators have developed some very novel and cool products since the technology revolution. Combining holographic images with Artificial Intelligence (AI) is one creative and essential product. New technology allows us the ability to liken ourselves to that image having the ability to act, talk, respond, and more as if we’re doing it ourselves. Originally designed to help students interact with the Holocaust, the use has expanded, and we’re seeing concerts of dead performers like Roy Orbison, Amy Winehouse, and others. And it’s no longer for the dead but the living. This summer, you can see Abba in concert while they’re at home sleeping. Companies that own this technology have announced that this technology will now be available for personal use. Amazon just revealed that Alexa could record the voice of a dead person and play it. They need less than 1 minute of audio recordings to be able to mimic the voice. These innovations are far more advanced than recording on a cassette, zoom, or video on your phone. They can be manipulated—going beyond a defined recording but can initiate new interactions. 

Wow, just think about it. Now, think about the potential consequences for estate practitioners and their clients. 

It’s not hard to see the evolution of this technology creating new business opportunities. One such business is the creation of casting agencies that focus on digitized AI-abled images that can be used for film, TV, and corporate training. Estates will have the ability to sell images of dead people to generate income. 

The issue of personal rights, rarely considered in personal estate plans, must now be addressed in estate documents. Like advanced directives, clients must clarify their desires regarding using their image and voice. Without limitations, their likeness could be used in adult films or make harmful comments or utterances that can damage a reputation. Like celebrities, the everyday person needs to think about guiding and controlling how their image will be used in the future. 

Account Holder Death Options using Content Providers (Custodians) Tools

As you may have read recently, Apple released new features in preparation for an account holder’s death. With this new tool, account holders can make declarations on what, who, and when their content can be accessed. Google also has something similar, and Facebook has something different. Currently, only a few content providers feature options for their users for these matters. 

We expect an increase in the release of account holder data disclosure directives from Custodians. Clients who don’t take advantage of them can destroy even the best-laid wealth and estate plans.  

Similarly, Custodians are also limited and can be classified into three options.

  • Inactive Account Managers (IAMs)
  • Memorialization is usually tied to Legacy Content Managers (LCMS)
  • Assigned to a data disclosure designer (Designer) 

These are only a few options, nor is it the industry standard. This is only the beginning of content providers learning and experiencing more account holder deaths and estate necessities. This area is in its infancy, and the first iteration of options can be confusing and pose a significant risk to the estate’s settlement. 

Digital Legacy Content Managers

For example, many people misunderstand that digital Legacy Content Manager (LCM) features are very different than the often needed “disclosure (or access) of an account’s contents .” LCMs’ abilities are limited. They can NOT impersonate the account holder, nor do they have access to many personal areas of the account holder’s profile, including Messaging, Personal Settings, and other communications. LCMs are mostly permitted to post pictures, memories, and announcements in “public” posts. Many estates need or want access to data excluded from the LCM’s control. Thus, disclosure of an account’s contents is required. Users are not educated about this difference which can lead to false expectations. 

Memorialization

This proprietary option is minimal. The account holder can keep their profile published in the content provider’s URL. Unless it is directly tied to an LCM, everything will freeze in time…forever.  

Inactive Account Managers

Let’s play out some very real and possible scenarios where the content and data may not be disclosed or transferred that can easily result in permanent damage to the estate’s complete settlement when an Inactive Account Manager tool (IAM) is used. Someone has been designated (Designee). 

  • Designee Unawareness of Assignment 
  • Designee Procrastination of Data Review 
  • Client/Designee Relationship Deterioration 
  • Uncooperative Designees
  • Designee’s Death- If the Designee dies, communications and data disclosure may be distributed to an unattended email address. This means no message from the email provider informing the sender of the account status. (We need to fine-tune this sentence)
  • IAM Designations are not updated regularly – Similar to estate documents, updating IAM designations is critical to ensure effectiveness. Outdated decisions can result in the Custodian’s declining to the disclosure of data. 
  • As a warning, if clients rely on the content provider’s proprietary options, they need to be fully aware that decisions made on one URL do not necessarily transfer to other URLs, business units, or websites owned by the parent company.
  • Additionally, these proprietary options are singular. Information is not shared amongst each other, thus requiring any updates to IAM to be made to each content provider. If several content providers need updating, it is most likely that the account holder will avoid doing the hard work of changing all the records. 
  • Conflict with Estate Provisions – This is a tricky area, but the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) enacted jurisdictions have a very clear treatment of potential conflicts. The law recognizes that designations made on the Custodian’s proprietary app, website, or otherwise will prevail. Any provisions in the estate documents can be considered, but the Custodian is not obligated to fulfill them. 

With some luck (or strict maintenance), declarations made in the estate documents will match the decisions made on the content provider’s proprietary tool. Otherwise, disclosing an account’s data will be left to the content provider. 

You must ask your clients questions about their usage of these tools. With more and more content providers creating new features and options, it’s essential to understand a client’s thoughts on using these tools, now and in the future. This can provide some direction in creating other provisions in the estate documents that identify and direct access to information. 

Your source of information – DCS brings you important updates and impacts on the Trusts and Estates industry. Innovators are doing their jobs by creating tools, investments, games, and more with new technology that everyone uses. Lawyers, clients, and fiduciaries need to know about these features and functionality to make informed decisions to create an effective wealth and estate strategy. We at DCS believe it’s essential to keep you aware of any changes that may influence your firm. 

Directive Communication Systems – DCS and our exclusive succession management program reduce the stress associated with online accounts and digital property for those responsible for Trusts and Estates management. Our streamlined platform offers an alternative for clients working with independent content provider tools and keeps them aware of new account holder death data features (and options). We make it easy to plan effectively. We know that even one lost account can ruin what you (and they) have worked for.