Florida Banking May 2024

2. Ask clients questions about what they have, their online behavior, and what they plan to do in the future. Identify the following types of accounts; • Financial • Sentimental • Accounts that may hold other assets (i.e. cloud-based storage holding statements and IP) • Governmental • Social Media and profile • Business and all related service providers. 3. Explain the difference between physical and digital property and the priority of custodians to protect their privacy. Be sure to include the penalties for failing to protect that privacy even in the event of death. 4. Consider using specialized team training and technology that is focused on this area and can facilitate the administration of after-death wishes and allocations. Taking the initiative to re-work your processes surrounding estate planning can not only position your company as an industry leader, but it might also save you a lawsuit. If a valuable digital asset is not settled due to failure in following the RUFADAA and privacy laws, your firm could face a lawsuit. It’s not a question of if, but when court actions and claims will be made against planning and administrative representatives for failing to prepare and secure digital property. If you are still struggling to effectively advise your clients on digital property, reach out to one of our team members today to discuss your options. Lee Poskanzer is CEO of Directive Communication Systems (DCS), a technology company delivering digital asset property succession management solutions for professional advisors, their clients and representatives involved with managing wealth, estate planning and administration. Poskanzer is also launching The Digital Death Clinic (DDC), a consulting firm designed to educate and prepare all stakeholders involved in a person’s death. Prior to launching DCS and the DDC, Poskanzer successfully led product innovation for many of the most recognized Fortune 500 companies including American Express, Safeway, PolyGram Video, Staples and others. He has transitioned products and services from innovation to industry standards and practices for the legal tech, fintech, entertainment and consumer services categories. Poskanzer has become a respected authority in the area of the digital asset succession and has instructed CLE courses for the American Bar Association, ACTEC, STEP International, several state and local Bar Associations, NAEPC chapters, Death Doula Ontario Network and other industry associations. He has also been an observer on several ULC committees related to digital property, and trusts and estates work. Poskanzer has been featured in leading press including TechCrunch, Wall Street Journal, CNBC.com, NPR, and Trust and Estates Magazine.

Digital Property, Continued from page 21

in a positive outcome. This is unnecessary and adds to the emotional turmoil and stress of the entire situation. However, it’s important to understand that password sharing is acceptable in some instances. It is legally acceptable for an executor or trustee to use passwords to access a device. This is because the person has to be in possession of the device to gain access to it. This isn’t impersonation of the account holder. In this instance, the password can only be used to access the device and its contents. It is not permissible to then gain access to its apps and connections off the device. Digital property is adding and changing the ways provisions are written. AI, ChatGPT, and personal avatars with AI features all add a layer of complexity to digital property. These items create the need to include language surrounding licensing rights of personal images. For example, Tom Hanks’ image is now being used for a dental office to promote its products, even if he didn’t expressly consent to the campaign. Images can be altered and warped to promote products and services that clients might have never agreed to while still alive. The usage of this type of digital property needs to be included within a client’s post-death wishes. So, what is an effective process? First, you need to incorporate an understanding of digital property into your firm. What digital property does your client have and how does that impact the trust and estate planning process? Do you need to implement provisions surrounding the use of AI and creative licensing? Next, you need to have clear communication with your clients on how they want their directives handled. How should accounts be dispersed? Are there any accounts that should not be passed along? Digital property is changing the way trust and estate planning is conducted, placing greater emphasis on intangible property. Your firm needs to be able to adapt to these changing demands to remain relevant in trust and estate planning in the 21st Century. Tomorrow Isn’t Guaranteed: Take Action Today Many financial advisors resort to the phrase, “Past performance cannot guarantee future results.”Although it’s true, no one can predict the future. There are steps you can take to effectively advise your clients about the intricacies of trust and estate planning with digital property. This means that now is the time to take action and solidify your client’s succession plan in regard to digital property. Where do you start? It can be an overwhelming process to overhaul procedures and strategies you’ve been loyal to for the past few decades. The industry is changing. The rules, regulations and guidelines are evolving to establish industry standards and practices. We’re just not there yet. Here’s the game plan: 1. Educate, train and prepare the staff on the aspects and importance of digital property planning and settlement.

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