Authored by: Stephen R. Elville, Esq. — Elville and Associates, P.C. — 443-393-7696, steve@elvilleassociates.com
An unprecedented situation is underway – the Secure Act may impact estate planning in a significant way – in particular, estate planning for retirement plan assets. The Secure Act (House of Representatives’ version – the 10-year plan) recently passed through the House by way of a 471-3 vote. The Senate is proposing a 5-year plan. Although it is unclear which plan will go forward, it is anticipated that one of the two plans will pass in both the House and the Senate and be signed into law by President Trump in August (2019). If this comes to pass, the new law would go into effect for decedents dying after December 31, 2019 (effective in 2020).
Why is the Secure Act important and what should you know?
The Secure Act will directly impact the length of time IRAs and Qualified Plans can defer income tax and be stretched. Unlike the current law allowing inherited IRAs to be stretched out in accordance with IRS life expectancy rules, the Secure Act would limit the stretch out of IRAs to either 5 or 10 years, with some exceptions. The Act also applies to Roth IRAs. The Secure Act is potentially terrible for some people, especially those who will have their estate plans disrupted and lifelong plans to leave children, grandchildren, nieces and nephews, or others retirement plan assets over the beneficiary’s individual life expectancies thwarted. Fortunately, there are several strategies to deal with the potential impact of the Secure Act, and over the coming weeks and months we at Elville and Associates will be discussing this potential legislation with our clients and helping them make sense of the changes that are likely to come, and advising them about any needed planning adjustments. If you would like to speak with me or another attorney at Elville and Associates about this unprecedented situation, please contact Mary Guay Kramer at 443-393-7696 or via email at mary@elvilleassociates.com. You may also send an email to me at steve@elvilleassociates.com. For an in-person meeting, please also contact Mary Guay Kramer and a meeting will be scheduled at your convenience.
The New Elective Share Law, a.k.a. “Augmented Estate Legislation” Has Passed. What Does This Mean to You?
Authored by: Stephen R. Elville, Esq. – Elville and Associates, P.C. – 443-393-7696, steve@elvilleassociates.com, @elvilleassoc
The new Elective Share Law, otherwise known among estate planning lawyers as the “augmented estate legislation”, was passed by the Maryland Legislature and will be effective October 1, 2020. This new law will have a profound impact on the estate planning of certain married couples, especially those in second, third (or more) marriages who intend to leave assets to their respective children, grandchildren, nieces, and nephews, or others. The new Law will precipitate strong consideration of pre-nuptial or post-nuptial agreements as a tool to prevent a surviving spouse from thwarting the estate planning intentions of a deceased spouse who is the first to die by exercising his or her right to an elective share of the estate of the surviving spouse – the estate to now include both probate and non-probate assets (subject to a formulaic approach). If you would like to know more about the new Elective Share law, or simply have your estate planning documents reviewed, please contact me at the following: steve@elvilleassociates.com; or mary@elvilleassociates.com; or via telephone at 443-393-7696.
Authored by: Stephen R. Elville, Esq. — Elville and Associates, P.C. — 443-393-7696, steve@elvilleassociates.com, @elvilleassoc
What’s been on my mind for the past several weeks is an image – actually two separate scenes – perhaps it is a sequence. It happened about four months ago. Two couples came into my office during the same week to discuss their estate planning. These couples were totally unrelated, and their planning needs were not extraordinary. So why do they linger in my imagination? They had several things in common related to estate planning, but two things in particular. Can you guess what they were? I’ll bet you an ice cream cone that you can’t. Ready? While both couples had existing estate plans and had engaged in estate planning many years earlier – the existing plans were revocable trusts – (1) neither couple had heard from their respective estate planning attorneys for 16 and 18 years respectively; and (2) neither revocable trust plan contained any of the respective couples’ assets. In other words, both of these mature couples had implemented revocable trust-based estate plans and then had not heard from their estate planning law firm since the time of execution (nearly two decades), and both trusts were unfunded (assets were not properly aligned). Therefore, but for these couples having the intuitive awareness to seek assistance from a new law firm, both plans were 100% on track to fail. Can you imagine? Yes, plan failure can and does happen, as these examples illustrate.
Yet, there is no reason for this kind of risk in estate planning. Risk in estate planning can be minimized and controlled through a compassionate and caring process, client education, and continuing maintenance and updating. Furthermore, choosing the right estate planning firm and service model is critical to your estate planning and to your family. For more information about the estate planning process and what to look for in an estate planning, elder law, or special needs planning attorney, please contact Jeffrey Stauffer at jeff@elvilleassociates.com, or Mary Guay Kramer at mary@elvilleassociates.com. #elvilleeeducation
Check out Elville & Associates‘ Partner Olivia Holcombe-Volke’s co-authored article in the Spring 2019 edition of “The Advocate,” titled “Your Home, Your Deed, Your Legacy – Ensuring Stability in Baltimore City through Legal Services” on page 6 of the The Advocate | 2019
Authored by: Jeffrey D. Stauffer – Community Relations Director, 443-393-7696, jeff@elvilleeassociates.com, @elvilleassoc
On March 7th, Elville and Associates’ principal and lead attorney Stephen R. Elville, J.D., LL.M., visited the University of Maryland at College Park to partner with the University of Maryland Autism Research Consortium (UMARC) for the third in a four-part nationwide webinar series to provide education and resources for families and professionals regarding autism and other neuro-diverse conditions. The series was led by Ms. Kathy Dow-Burger, Co-Director of UMARC and a Speech Language Pathologist at the University and Ms. Nan Berstein Ratner, a Professor in the Department of Hearing & Speech Sciences.
Mr. Elville’s discussion, regarding “Benefits,” covered a wide spectrum of information as he shared information regarding SSI, SSDI, Medicaid, and Medicare; local benefits such as Medicaid waivers, the Autism wavier, the Maryland Division of Rehabilitation Services (DORS), and employment training; and local benefits such as micro grants, home share programs and non-profit benefits.
Pictured from left to right: Mr. Stephen Elville, Ms. Kathy Dow-Burger, Mr. Mark Friese, Mr. Matthew Bogin Mr. Chase Phillips; Ms. Nan Bernstein Ratner
Also presenting in the webinar series were Mr. Chase Phillips, Senior Vice President and Senior Financial Advisor with Merrill Lynch; Mr. Mark Friese, Wealth Management Advisor and Senior Financial Advisor with Merill Lynch; and Mr. Matthew Bogin, Attorney with the Michael J. Eig & Associates, P.C. Along with Mr. Elville’s discussion of benefits, Mr. Phillips webinar discussion surrounded an “Overview of the Four Financial Pillars” (Legal, Benefits, Family, and Financial); Mr. Friese’s piece discussed “Financial Planning; and Mr. Bogin’s part delved into “Legal and Family Planning.”
To complete the series, UMARC welcomed the webinar presenters back to the University of Maryland on April 10th for a live webinar panel discussion that encompassed the entire webinar series to field questions from a nationwide audience. The result was a comprehensive resource guide for families and professionals for special needs planning. To listen to the entire webinar series and ensuing Q&A discussion, please click here.
Stephen R. Elville works with individuals and families to provide a unique attorney-client experience and peace of mind through a proactive and collaborative approach based on leading edge legal-technical knowledge. Mr. Elville has extensive experience in working with clients involved in crisis situations. He also brings a unique and personalized approach to pre-crisis planning. Mr. Elville routinely handles client issues in the following areas: wills, trusts, estate tax planning, powers of attorney, living wills/advance medical directives, Medicaid asset protection trusts, Medicaid planning and qualification, estate administration, fiduciary representation, nursing home selection, guardianships, special needs planning for children and adults, Social Security Disability Income (SSDI), Supplemental Security Income (SSI), and IRS tax controversy.
Mr. Elville was named to the Maryland Super Lawyers List in 2015, 2017, 2018, and 2019 and is a member of the National Association of Elder Law Attorneys (NAELA), Elder Counsel, Wealth Counsel, the Academy of Special Needs Planners, and the National Network of Estate Planning Attorneys. He is the past Chair of the Howard County Bar Association Estates & Trusts and Elder Law Sections and is the past President of the Coalition of Geriatric Services (COGS). Mr. Elville currently serves as Chair of the Elder Law and Disability Rights Section Council of the Maryland State Bar Association, and is a member of the Charitable Gift Planning Advisory Committee for Anne Arundel Medical Center (CGPAC). He also serves as Chair for Law Day Maryland.
The education of clients and families through counseling and the use of the very best legal-technical knowledge available is the practical mission of Elville and Associates. To learn more, visit www.elvilleassociates.com, or call 443-393-7696.
Elville and Associates – Planning for Life, Planning for Legacies
The Future of Pro Bono in Maryland
As Originally Appeared in the May 2018 edition of the Bar Bulletin of the Maryland State Bar Association
Authored by: Olivia R. Holcombe-Volke, Partner at Elville and Associates; Melinda Fithen, Associate with Venable LLP; and Brian Weeks, Administrative Law Judge for the Office of Administrative Hearings
There is a boom in the number of lawyers practicing in Maryland, according to the ABA National Lawyer Population Survey. Over the last decade, the number of lawyers in Maryland has increased by 84 percent to a total of 38,000 members of the bar. With so many attorneys, one would think that securing sufficient pro bono representation for Maryland residents in need would be no problem, right? Wrong.
Statistics show that the majority of Maryland attorneys do not participate in pro bono work early in their careers. According to the Maryland Courts 2016 Pro Bono Report, 58 percent of full-time Maryland lawyers did not provide pro bono service in their first five years of being barred. It is during this critical time, when new lawyers are taking on a competitive legal job market and trying to establish themselves professionally, that pro bono work can be the most rewarding and fruitful.
The Need is Real
Maryland Volunteer Lawyers Service (MVLS), the largest provider of pro bono civil legal services to low-income Marylanders, estimates that there is one attorney for every 3,600 pro bono clients. Now is the time for new attorneys to explore pro bono service, for their careers and for their communities.
Pro Bono Pays Back
When attorneys invest their time in pro bono work, it pays them back generously. As successful Maryland attorneys, and members of MVLS’s new volunteer engagement initiative – Community Advocacy Network (CAN), – we can share several reasons why it is vital to take on pro bono cases early in an attorney’s legal career.
- Mentorship from practicing Maryland attorneys Mentorship is a crucial part of professional development for newly barred attorneys. By joining a pro bono legal services organization, attorneys will learn from the wisdom and experience of other lawyers who can provide mentorship for a variety of case types, as well as client relations (specifically, how to navigate different client interactions while being sensitive to the clients’ situations).
- Expanding legal skills Participating in pro bono can introduce new attorneys to different areas of the law while also giving them the opportunity to experience new things, such as serving as first chair on a trial, working directly with clients, or doing transactional work. Attorneys can gain courtroom experience in a variety of practice areas, including child custody, landlord/tenant disputes, debt collection and tort defense. Alternatively, volunteers can choose cases that do not require litigation such as estate planning, estate administration, expungement, or contract review.
- Developing a legal network Doing pro bono work helps lawyers expand their networks by connecting them with local bar leaders, attorney pioneers, and members of the bench. It can expose a new attorney to professionals working at large and small law firms, or those who have chosen the solo route. Relationships established through pro bono work may even lead to full-time employment or profitable billable client referrals.
- Establishing community ties Building an important network through pro bono work is not limited to fellow attorneys – it can also mean the opportunity to connect with a variety of community organizations, like House of Ruth, Helping Up Mission, CASA de Maryland and CASH Campaign, among many others. By broadening their horizons in this way, new attorneys will begin to feel like they can make a difference in their communities using the expertise and knowledge they possess.
- Providing legal assistance to Marylanders in need One of the most powerful reasons to participate in pro bono legal services is to help other people who have nothing to give but their gratitude. Earning a law degree is a remarkable accomplishment. Being able to interpret the law is not something every person can do. By offering their unique skills to the less fortunate, pro bono attorneys can advocate for children and families, protect seniors from the damaging effects of scams, contribute to workforce reentry, and stabilize Maryland communities.
The future of pro bono in Maryland depends on every single attorney who is reading this article. There is an abundance of opportunity for new attorneys who are just starting their career, as well as a need for more seasoned attorneys to donate their time and experience to this critical work.
To learn more about joining MVLS CAN, and how to get involved in pro bono work, please visit mvlslaw.org/mvls-can.
Melinda Fithen is an Associate with Venable LLP. Olivia Holcombe-Volke is a Partner at Elville & Associates, P.C. and Brian Weeks is an Administrative Law Judge for the Office of Administrative Hearings. They are all members of Maryland Volunteer Lawyers Service (MVLS) Community Advocacy Network (CAN).
By: Jeffrey D. Stauffer – Community Relations Director, jeff@elvilleassociates.com, 443-393-7696
On Thursday, January 24th, for a fourth consecutive year families of students at the Harbour School at Annapolis came out to listen to Elville and Associates’ principal Stephen R. Elville, J.D., LL.M., present a far-reaching discussion about “What Families Need to Know About Planning for a Loved One with Special Needs.”
Through Elville and Associates’ and Mr. Elville’s commitment to education, attendees came to understand what is involved in the planning process for a special needs family and the importance of preserving the loved one’s financial security and quality of life. The key issues of understanding the role of public benefits, making decisions about the future, and using estate planning and trusts to protect assets was discussed along with the types of special needs trusts and their specific purposes, along with who the decision makers and beneficiaries can be in these trusts. The “planning team concept” was also introduced — how a family’s’ attorney, financial advisor, CPA, and others can work together to help provide them peace of mind during the special needs planning process and beyond.
In a recently-developed partnership with Elville and Associates, Mr. Elville and the firm were pleased to welcome Mr. John Shatto, ABLE Ambassador with Maryland ABLE, to the presentation. Mr. Shatto’s charismatic discussion led families through the latest information about Maryland ABLE accounts, a new way to help individuals with disabilities save money and pay for qualified disability-related expenses without jeopardizing state or federal means-tested benefits such as SSI or Medicaid. His insights added great value to the evening’s discussion, and Elville and Associates is looking forward to many more joint events with Mr. Shatto and Maryland ABLE. To learn more about Maryland ABLE, visit www.marylandable.org.
Elville and Associates has partnered with both Harbour School campuses to offer special needs planning workshops to its families for the past four years, and the firm values its relationship with this high-level special needs school. The firm’s attorneys engage clients in a multi-step educational process to create solutions for its clients’ needs ensure that estate, special needs, and elder law planning works from inception, throughout lifetime, and at administration. Clients are encouraged to take advantage of the “planning team concept” for leading-edge, customized planning. The education of clients and their families through counseling and superior legal-technical knowledge is the mission of the attorneys at Elville and Associates. With offices in Columbia, Annapolis, Baltimore, and Rockville, Elville and Associates proudly serves clients in central Maryland, the Washington metro area, and the Eastern Shore. Visit www.elvilleassociates-staging.bgbshlgq-liquidwebsites.com to learn more.
How One Thing Might Lead to Another
I was going to write a piece about pianists in the first part of the 19th century, and while doing my research, realized that one can’t really discuss this era of pianists without looking at a famous violinist.
To begin, keyboard players in the baroque and classical eras were generally taught to sit straight, not move around very much, and keep the hands right over the keyboard. Quite frankly, that was the best way to play the instruments of that time. The organ, the harpsichord, and the clavichord were the primary keyboard instruments, and a soft touch was really all that was required. The harpsichord and clavichord didn’t have a dynamic range (changing volume), and achieving that on the organ required the use of additional stops and opening the swell pedal to get more into the pipes. The keyboard itself had nothing to do with it. In fact, we know from CPE Bach that his father (Johann Sebastian), the greatest keyboard player of his time, didn’t press on the keys so much as he “stroked” them. Carl said that his father kept his fingers curved, and would basically draw back on a finger to play a note. An interesting technique that would work for an organ or harpsichord, but not very well for a piano. That is perhaps why, when J.S. Bach visited the court of King Frederick the Great of Prussia, where his son Carl was the court harpsichordist, that when introduced to a pianoforte built by Silberman (one of the most respected organ and harpsichord builders of the time) that he was dissatisfied with the instrument. That did not sit well with Silberman.
The piano was invented around 1700 by Bartolomeo Christophori. The original name of the instrument was “Gravicembalo col piano e forte.” That means, “large harpsichord with soft and loud.” This became shortened to “pianoforte.” The first ones probably didn’t sound that great, and there was a lot of developing that had to happen over the next couple of decades. During the first part of Mozart’s life, the harpsichord was still the primary keyboard instrument. The pianoforte was considered still somewhat experimental. Designs improved over the years, and before too long, the pianoforte (or fortepiano as it was called in England) eclipsed the harpsichord, which became an anachronism. Muzio Clementi is considered the father of the pianoforte because it is felt that he was the first composer to really approach the instrument as a new instrument, and not as a modified harpsichord. A new style of writing was needed for this instrument, and it was Clementi that set the standard.
By the 1830’s, the pianoforte was pretty much the instrument that we know today. Makers such as Steinway, Erard and Playel improved the sound, the range, and the reliability of the instruments. This paved the way for the great surge of piano virtuosos in the 19th century.
This is where we stop looking at pianists and discuss a violinist. Nicolo Paganini was the greatest violinist of his time, perhaps the greatest who ever lived. He was not only a musical genius, but he was also the first musical PR genius. He ws able to do things on the violin that nobody had ever seen before, and back in those dark days it was thought that the only way someone could do that would be if he were in league with the devil. When Paganini heard that story, he hit upon the most brilliant musical marketing campaign ever. He was tall and gaunt, which gave him a somewhat fiendish appearance. Couple that with wearing a long black cloak, and arranging stage lighting so that he was lit from below only, and then gesticulating wildly while playing unbelievable music on the violin, and he would fill the concert hall every time. It is hard to imagine how one musician could capture the world’s attention like that, but he did, and one of the first people to really take note of it was Franz Liszt.
Liszt was fascinated with Paganini, and realized that if that sort of thing could work for him, why should it not work for a pianist? Thus was born the “pianist performer.” Gone were the days of sitting still at the keyboard with fingers curved and never lifting more than an inch above the keys. The modern pianoforte allowed one to play loudly, and that was achieved by hitting the keys harder, and that meant raising your hands way above the keyboard to come crashing down in an explosion of sound. Additionally, the innovation of dampening and sustain pedals gave the pianist the opportunity to pull off some of the same stunts on their instrument that Paganini did on his. Before you knew it, there were touring virtuosos all over the place, and each one had his own trademark. Sigismond Thalberg developed a technique that created the impression of a third hand at the keyboard. Alexander Dreyshock astounded listeners with his freakish technique playing thirds, sixths, and octaves. It was said that he could play Chopin’s “revolutionary “etude at tempo in octaves.
Of course, there was Chopin. Perhaps the most refined of them all. He could do anything the others did, but just couldn’t do it very loudly. It was said that his dynamic range was amazing but never got very loud. This served him well when playing for small groups, which was his preference. He once said of Liszt, “he plays my music the way I wish I could.” Chopin was plagued with ill health much of his life, and was too weak to play with great force. He compensated for it with great sensitivity, and a rubato that, by all accounts, could not be matched.
Of course, there was Liszt. He was the standard by which every touring virtuoso measured himself, and most came up short. He was a rock star in his day. Women would swoon and actually throw their underwear at him! How ’bout that, Tom Jones! Liszt was important not only in developing piano technique, but in fostering interest in musicians that might otherwise be forgotten. Let’s not forget that Franz Schubert was relatively unknown outside of Vienna. Liszt was a great advocate of his music and really brought it to the attention of the rest of Europe. He was also generous with young composers and helped them when he could. There is the story of young Edvard Grieg approaching Liszt with his recently completed piano concerto, and asking the maestro if he might be willing to look it over and tell him what he thought. Liszt took the music from the young Norwegian, went the piano, and sightread it, doing a reduction from the orchestral score as he played! They don’t make ’em like that anymore.
Well, I suppose I could go on and one, but we’ll save something for the next time we are together.
A Guide for Making Room for Grief in Work & Life
Have you ever created intentional space in your work/life for grief?
I never knew it was possible until earlier this month.
I may be relatively young, but I’ve had my share of deaths to process in life. In all instances, I went through the motions and then seemed to just move on. As in, I went to a funeral, accepted condolences, and then got back to my routine – at work, at home, with loved ones and strangers.
This included my father’s passing a couple of years ago. My grief consisted of a few days on the couch, eating junk food and watching movies. Then I picked myself up and moved forward. No self-care, no reflection. That is certainly one way to handle it, but what I did this month was so much kinder to myself. And, just maybe, the kindest thing I’ve ever done for myself.
My grandfather died peacefully, a week short of his 93rd birthday. Knowing that he was only going to be with us for a short while longer, I made some very adult decisions.
- Decision #1: There was literally nothing more important in my life than saying goodbye to my Poppi in the way that felt like I was honoring him.
- Decision #2: I was going to allow my daily experience and grief to be the priority in my life by making space for it.
Once those decisions were cemented in my mind as the only things with real significance, everything else fell into place as if I knew exactly what to do…
- I canceled all my non-essential meetings. There were FIFTEEN of them! To be kind to myself, I blind-copied everyone at once (opposed to personal emails for every person), told them why I needed to reschedule and counted that task as “done” in a matter of a few minutes. The immediate weight that came from reclaiming a minimum of 15 hours of my week was enormous. Everyone was so extremely kind and supportive of my need to reschedule. I kept 3 essential meetings (reviewing proposals and onboarding a new client) and used the rest of my time working on things that bring me joy and add great value to my business. And it got me thinking…why did I have 15 non-essential meetings on my calendar, anyway?
- Made space for self-care every day. Things like, taking a bath, reading, writing, getting a massage. Every day there was one scheduled item of self-care on my agenda. In a week, I had given myself the gift of self-care in a way that seemed like a pure indulgence. Each act of self-care rejuvenated me in a way that felt like, “Yes. My body is important to care for. My spirit is important to nourish. Thank goodness I can move slowly and be kind to myself.” When I look back, none of those actions were longer than 90 minutes and took way less than the time I had given myself space for by removing the non-essential meetings.
- I reignited good habits. I meditated, did some form of physical activity and cooked the most delicious meals with my husband every night. These, again, seem like a luxury to me when I do all three in one day – let alone all three for weeks straight each day. These habits are direct reflections of my values and things that always make me feel centered and on a good path whenever I regularly activate them in my life. I just didn’t think I had space for them, all in one day, before. I was so very wrong.
Having done these 3 things literally changed my life. It helped me to realize my values more deeply, appreciate the supportive people in my life and make space to cherish the memories of my grandfather. In a time when we are all working so damn hard, it’s hard to push pause. But when you do, your soul thanks you.
I spent nearly two weeks making room for grief, which felt like I was swimming in warm molasses – in the best possible way. In a matter of minutes of making these executive decisions in life, I gained immense clarity and gratitude for the gifts in simplicity.
I am always saying, my goal is to “live a simple and purpose-filled life. The last gift my Poppi gave me was the realization that I can have that now. I am the one getting in my own way of making that a reality and that was an epiphany that I will take with me as I build the life I want to live.
So while I offer these suggestions as a possible guide in grief, we must remember that at the end of the day, grief is a walk alone. Others can be there and listen but you will walk down your own path, at your own pace, with your own pain. You will come to your own peace, in your own time, in whatever way makes sense for you. My experience is not yours and it is not a suggestion that one size fits all. It’s far from that when it comes to loss.
I was reminded that grief is the last act of love we give to those we loved. Where there is deep grief, there was great love. And that’s what my life has felt like lately. Fueled in love, reflection and gratitude. The grief isn’t gone, it’s just taken a new shape for me. One that I never knew was possible, one that I wish for everyone to experience if they’re able to make space for it in life.
MaryBeth Hyland, founder of SparkVision, believes that when you connect people through purpose, there’s no limit to what they can do. Her organization helps multi-generational teams who need an unbiased partner to identify the gap between their current and ideal culture. Grounded in her BA in Social Work and MS in Nonprofit Management, this millennial leader is sought after for her ability to create movements that resonate. MaryBeth has been honored in Maryland as ’Innovator of the Year,’ ’Women on the Move,’ ’Top 100 Women,’ ’Top 100 Millennial Blog,’ ’Civic Engagement Leader’ and ’Leading Women.’
As recently as this morning, I experienced a headache common to all of us living in the now almost-entirely-digital age. I went to log on to my email from a different “platform” than I normally use (an old laptop, rather than my phone where I normally check email, and on which my email password is saved). I typed in what I thought was my password. No. I tried a variation that I have sometimes used as a password. No. I tried variations on the variation that I have sometimes used. No. I cursed at the reality of the fact that I KNEW my password until I had to change it several weeks ago because of the security requirements that lead to a new password being necessary every few months. Finally, I gave in and created a new password. Which I likely will not remember, because now I am so many variations past my original password that my brain cannot contain which variation is the current one to access this particular account.
Sound familiar?
A friend who used to work at Google said that people would call in all the time, asking for the “help desk” to get them back into their email, from which they were locked out without any memory of their password, or the answers to their security questions, or access to the old phone number or alternative email where the “access your email” link would be automatically sent by Google in case of such dire straits. For these poor souls, it was unhappy news to hear from my friend that Google does not have a help desk, and that there is, in such a situation, no way to get back into their email.
Given these real-world examples of the complications faced by us as the OWNERS of these digital accounts, how in the world can we expect our appointed Agents/Fiduciaries to access our digital accounts in the event of our incapacity or death? Particularly if we don’t give them some mechanism for knowing where our digital assets are, or how to access them? It is common now to keep all of our important information on our laptops or desktop computers – but if that device is password-protected or otherwise locked, and no one other than you has the information to access it – how will your appointed Agent/Fiduciary be able to access your computer, your email, your Facebook, your digital photograph storage service, your Amazon account, etc., etc.?
In recent years, the law has finally started to catch up with the reality of our digital world – though in typical, behind-on-the-curve fashion (the law is always a few years delayed on the timeline of mainstream culture). In 2016, the Maryland legislature passed the Maryland Fiduciary Access to Digital Assets Act, codifying the right of a digital account user to broadly allow or prohibit access to that user’s digital accounts to a Fiduciary by way of a Power of Attorney, Will, or Trust. Prior to the passage of this Act, such authority (for your Fiduciary to access your digital accounts) was dependent upon your completion of each and every website’s own Terms of Service – something I seriously doubt many of us thought or knew to do (I certainly did not).
But this is an imperfect solution, in and of itself. The issue of how our appointed Agents/Fiduciaries might access our digital assets presumes that they will know what our digital assets are – not to mention any and all of our other, non-digital information. The starting point is to imagine how anyone other than you will possibly know what you have, and where you have it (where do you have accounts? With whom do you have life insurance? Who is your doctor, financial advisor, estate planning attorney, etc.?).
A common approach in the past was to keep important documents and information in a safe deposit box. But what if no one but you has access to it, and you become incapacitated or die? Unbeknownst to most people is that a safe deposit box is only accessible by signatories/authorized users. A Power of Attorney may or may not be recognized by your bank – and even if the bank does recognize the authority of your Power of Attorney, the bank may not recognize the authority of your Power of Attorney to access your safe deposit box. And, after your death, when your Power of Attorney no longer has any authority or validity, NO ONE has access to your safe deposit box UNTIL a probate estate is open and letters of administration are given to the Personal Representative (sometimes called the Executor) of your Estate. Which can lead to quite a circular mess if your Will, which should be filed to open your Estate, and which sets forth who you wish to be appointed as your Personal Representative, is housed in your safe deposit box. Or, even worse, if you established a Revocable Living Trust in order to avoid the opening of a probate Estate, but now, a probate Estate must be opened in order to gain access to your safe deposit box. Many a Trusts and Estates attorney has horror stories to share about the mess caused by important documents being stored in a safe deposit box that only one or two people have access to…
So what is one to do?
One client with whom I worked made it a pet project of hers, to put together a notebook of all of the information her children or siblings might need to know in the event she becomes incapacitated or after her death. She put all passwords, all contact information (for her estate planning attorney and her financial advisor and her doctors, etc.), all asset type and financial institution information, EVERYTHING into this notebook. Now, all that her children and siblings need to know is where that notebook is being kept. Of course, the impetus is on her to keep this information updated.
For some, this old-fashioned recordkeeping is uncomfortable, whether because it is tedious, or considered too insecure. As an alternative, there are various digital storage options on the market now – companies, such as DocuBank and Everplans, that provide the service of a “digital filing cabinet” for all of your important paperwork and information. Of course, this method has its imperfections, too. Ultimately, there is an argument to be made for a hybrid approach, for storing your important information in a variety of ways. One of the best methods for ensuring that your important information is known and available to those who may need it to act on your behalf is to have an estate planning attorney who is familiar with you and your asset information – and, even better, to have a financial advisor and a CPA, too – that is, to have your own personal team of advisors.
There is a fine line between keeping our private information private and secure – and keeping it so private and secure that no one else is able to access it when we actually need them to. We welcome you to discuss this particular challenge with us, and we urge the importance of keeping your information updated, wherever and however you choose to keep it.
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