Digital estate planning gains traction as New York weighs e-wills

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As more and more of life — and wealth — moves online, digital estate planning tools are quickly becoming part of the trusts and estates conversation. Here’s how local trusts and estates attorneys are weighing the benefits, risks, and role of digital tools in modern estate planning.

“I view the definition of digital estate planning in a couple of ways,” said Graham Leonard, an attorney who is a partner in the trusts and estates group at Harter Secrest & Emery. “One is that it is the potential for your estate planning documents themselves to be digital. Then it is also making sure whatever form your estate planning documents are in, that they’re capturing all the digital assets you might have.”

Leonard says the rise of digital tools in estate planning reflects a broader shift in how people manage their lives and finances, and that there’s been a significant move from paper to digital items over the past decade.

In New York, fully digital wills are not yet permitted, but there is a bill currently under consideration that could change that. The New York Legislature has passed and sent to Governor Kathy Hochul a bill referred to as the Electronic Wills Act. Once signed and effective, it would create a statutory framework in New York’s Estates, Powers & Trusts Law for executing and filing electronic wills.

Accessibility, Leonard said, is one of the biggest potential advantages of digital tools.

“I’m really all for anything that helps people complete their estate planning,” he said. “The most important thing is that people turn to their estate planning and complete it, and if digital estate planning allows people to complete their estate planning easier or it’s more accessible than, I’m all for that.”

Leonard said one of the biggest concerns with digital estate planning is the challenge of identifying digital assets after someone dies, and that digital assets and accounts are invisible unless someone knows them.

“In the past, paper financial statements often arrived in the mail automatically,” he said. “If you were acting as the executor of the decedent and you weren’t really up on what their financial affairs were, all you would need to do is wait a month, and the decedent would receive statements for basically every financial account that they had. That doesn’t really happen anymore.”

Leonard stresses that this shift makes planning critical, and he encourages clients to maintain clear, accessible records.

“Have a list and make sure it’s accessible,” he said. “If you have a perfect list of all your financial assets and passwords and things, but it’s not accessible to anyone, then it’s not a very good list for that purpose.”

Jay Organek, an attorney who is a member of the trusts and estates team at the law firm Lippes Mathias, says the growth of digital estate planning reflects both technological change and shifting ideas about what counts as an asset.

“There has been a pretty large influx over the past decade or so of new entrants in the space,” he said, explaining that at the same time, digital estate planning has come to mean different things to different people, ranging from online document creation to managing an expanding universe of digital assets.

Organek noted that the definition of digital assets has evolved significantly over the past decade.

“Digital assets as a concept used to refer to things like your iTunes collection or your Facebook photos,” he said. “Over the past decade or so, it’s really been more of a shift into other areas, like crypto, NFT, and more people thinking of their assets as digital in origin as well.”

From Organek’s perspective, one of the biggest advantages of digital estate planning tools is that they lower the barrier to entry by capitalizing on accessibility and approachability.

“I think there’s been a shift with these tools of more people just having estate plans in general,” Organek said. “Big picture, that’s fantastic. The more people that have something in place, the better.”

Organek added that digital platforms and tools can improve efficiency and accuracy in some cases, but emphasizes that they still have limitations.

“There’s always going to be something to be said for actually talking through what you’re trying to accomplish with an estate plan,” he said. “A human is going to get the nuances of that in ways that technology is still a long way off from being able to replicate.”

Legally, Organek said, trusts and estates law has been slow to change, and for an important reason.

“It’s one thing to give someone the ability to Docusign paperwork if they’re buying a life insurance policy,” he said. “It gets a lot more complicated and potentially troublesome after someone’s passed away. They can’t speak to what they did or did not do.”

That reality, he said, has historically made attorney oversight essential, particularly when documents may later be challenged.

“It’s a really exciting frontier,” he said, adding that technology is unlikely to replace attorneys outright. “I think there’s a good long runway for those lawyers that really do want to get in front of it, learn how to use these tools, and learn how to talk to clients about them.”

Looking ahead, Organek thinks we may see more of a hybrid approach to estate planning where clients have the option to start the process online but be required to speak with an attorney to finish.

“That way the client can ensure everything’s valid and actually says what they think it says, which is a really big part of the process,” he said. “It’s not just the drafting side, but also the interpretation of language and explanation that’s important.”

Caurie Putnam is a Rochester-area freelance writer.