Introduction

Self-driving automobiles, remote delivery of goods and services, and actionable analysis of terabytes of information in seconds (artificial intelligence) describe in part the benefits of today’s technological advances. As insatiable consumers of these benefits, have our estate plans kept pace with these modern-day advances? With the pandemic-inspired growth of remote work, have mobile workers adapted their estate plans to their new place of residency? As relationships change between spouses, dependents, and others, how quickly do our estate plans adjust to this new reality?

In the traditional era, clients held one-on-one meetings with attorneys to receive guidance and produce the necessary documents to carry out one’s desire for estate planning.  In the modern era, personal meetings continue to take place with the added option of meeting live over the internet through Zoom or Microsoft Teams, among other applications; however, is there something missing? If the worst-case scenario is for someone to die intestate, how can we get more people engaged in developing an estate plan that is more tailored to fit their objectives? Is there a middle ground that needs developing to decrease the number of people passing their estates through intestacy? It’s only a matter of time before changes occur in state law, technology, and client demand that will push for more adaptive estate plan formation.  Let us attempt to get ahead of this movement with reflective and thoughtful solutions before we find ourselves swamped by the speed and tide of change.

To help build the case for change in estate plan development, let us consider a few common issues that arise in a client’s life that impact their estate plan and its future administration.

Change in Relationship Status

The development and maintenance of relationships consumes a tremendous amount of time and energy in one’s personal and professional life. Clients will experience both positive and negative changes in a multitude of relationships over time. Several of the most significant relationship changes occur in one’s family, whether with a spouse, child, or other family members. How do relationship changes impact one’s estate plan? Besides devises and bequests to prospective beneficiaries, fiduciary nominations to serve as personal representative of one’s estate or guardian and conservator of one’s minor children come to mind. If a change in the disposition of the estate to a beneficiary or a change in their nomination to serve in a fiduciary capacity needs to occur, how much time will elapse in the traditional method of estate plan development before it takes place? Depending on the availability of the attorney and the client, it may take days or weeks before the issue is discussed, and the estate plan changed. If time is of the essence based on the client’s situation (i.e., failing health, upcoming long-term travel, etc.), the client’s issue may continue without an adequate, timely response and answer from their estate plan.

The use of an online platform to develop and maintain a client’s estate plan will likely become the standard in the future. Like current interactive financial planning systems, an interactive estate planning system may limit changes to the estate plan by the attorney, by the client, or by either (hybrid model). The online platform may be structured to send regular inquiries to the client asking if certain facts and circumstances remain true as time has passed. For example, the online platform may send a question (or several questions) to the client at select times of the year asking if they still want to benefit their friend with a specific bequest of $10,000 or nominate a select family member as a fiduciary. Depending on the interactive response from the client, the online platform may confirm or alter the bequest in the estate plan and ask the client to review and confirm the change in the modified documents afterwards. With this regular interaction between the client and their estate plan, there is a higher likelihood that the client’s estate planning objectives will be reached based on the latest relationship status of the client with their family and friends.

Change in State of Residency

In the traditional era of estate plan development, the client’s state of residence often dictated the legal advice and strategy employed to meet the client’s estate goals. As the 21^st century client has become more mobile, the estate plan requires more adaptability than in times past. It is common for clients to have more than one home to enjoy extended periods of time in desired counties, states, or countries. Where does the client truly reside? Does their place of residence change from year to year? What actions are clients taking to fortify their position of residency if it is called into question by a state or federal taxing authority? Beyond tax considerations, what asset protections does the client gain or lose in residing in one county, state, or country compared to others? Furthermore, how friendly is the client’s current residing jurisdiction in interpreting legal and estate matters that could impact the client’s estate objectives? All these legal topics must be reviewed and discussed with the client to inform them of the pros and cons of their decisions on residency.

An online platform could help inform a client (via state-approved legal education (not deemed legal advice)) of the advantages and disadvantages of establishing residency in a particular state considering the overall objective of the client’s estate plan. Advanced online platforms, particularly those governed by a network of licensed estate planning attorneys, can provide additional legal advice when considering a multijurisdictional analysis. Regardless of its sophistication, the online platform will provide continuous check-ins with the client on important aspects of their estate plan. For example, if the online platform can access the client’s location on a regular basis via their cell phone, then it may automatically send an email or text question to the client if they have moved (i.e., particularly if the client’s location in a state extends for months or longer).  By monitoring the client’s location, the estate plan becomes more adaptable and current by incorporating the client’s response to the online platform’s auto-generated question.

Change in Dispositive Provisions

As people enter and leave a client’s life, the final distribution of the client’s estate is likely to reflect these relationships. A deceased client will oftentimes pass wealth and heirlooms to family members. Similarly, a deceased client will likely reward long-term relationships with significant bequests. Recent relationships with elder care or hospice caregivers that receive outsized bequests raise concerns of undue influence among surviving family and heirs-at-law. Discovering they will receive something of value from the decedent’s estate is the most important piece of information a beneficiary will receive from the personal representative. The follow-up question of when the beneficiary will receive the bequest is the next pressing piece of information desired. Historically, if there is any uncertainty around the selected assets, named beneficiaries, or timing of distributions of the estate, litigation ensues.

Online platforms that facilitate estate plan document creation and near-time amendments can help fulfill the client’s dynamic estate objectives. For example, if a longtime friend predeceases a client, the client can update their estate plan by deleting the deceased friend from their dispositive provisions. The online system’s guardrails will alert the client if any assets of the estate are not spoken for by way of a distribution path. To verify the distribution plan for the estate, the online platform could produce a flowchart that reflects each beneficiary and the assets and values (i.e., current value or projected future value) they are to receive.

Change in the Messaging of an Estate Plan

Online platforms may enhance the messaging an estate plan provides. When a beneficiary doesn’t receive an item (i.e., family heirloom, memorable trinket, etc.) or an exact amount that they had hoped for (i.e., one of three children receives 0.01% more than the other children for the distribution to be 100% complete (e.g., 33.33%, 33.33%, and 33.34%)), hurt feelings and skepticism creep into the survivors’ psyche.  Could this result have been prevented? Possibly. Is this what the decedent had hoped for? Probably not. How can the messaging, whether intended or not, be more robust and informative? Enter the ethical will, side-instruction letter, or similar free-form document that expresses feelings of gratitude, passes along family stories and history, provides insights on one’s character traits, and speaks to surviving family members’ and friends’ lives with aspirational best wishes.

Several providers of ethical wills enhance the engagement rate of their process by sending one or two questions to their customers at a time. Upon receiving a response to the first question or two, another limited set of questions is sent. Repeating this process over an extended period, the ethical will providers develop a story that will accompany the customer’s estate plan. The online estate plan platform can help facilitate the development of similar stories or letters of encouragement by providing bite-sized questions over time. Employing this unorthodox process in the estate plan development may provide additional value that otherwise would be absent, helping to alleviate disgruntled feelings after the estate’s distribution of material possessions.

Conclusion

To increase the number of estate plans being developed, each state bar association should consider adopting an online platform providing basic legal education and guidance in the development of fundamental estate plans. The user interface must be engaging and informative (i.e., animated videos defining legal terms and describing fundamental estate planning strategies and documents). Drafting guardrails must exist to prevent unintended legal consequences (i.e., distributing assets to a former spouse or an estranged child). Considering state intestacy laws have been around for centuries, isn’t it time to modernize the education around descent and distribution and provide the tools to escape such default laws?

Blockchain technology allows for the audit of changes in its system. If estate plans are built on the blockchain, additional insight may be available for those that question the timing and circumstances that led to the estate plan (i.e., aid in the discovery of evidence for estate litigation and contests). Online providers of estate plans may utilize this technology for advanced security, for continuous updates to a client’s estate plan, and for the ultimate production of the documents for estate administration.

A new balance must be found between the distribution of legal educational content and the unauthorized practice of law for online providers of estate plans covering multiple jurisdictions. Each state’s bar association may assist in the passage of laws that permit a wider use of legal education in assisting online consumers develop state-recognized estate plans. Recall, the hope is to decrease the number of people in intestate administration, thereby lowering the time and costs on the state’s court systems for intestacy matters (i.e., finding heirs at law for notice, waivers, etc.) and increase the likelihood of online consumers reaching their desired estate objectives.  Let us embrace the advantages of technology to build a more adaptive estate plan for the mobile 21^st century client.

Short Biography

Harvey A. Hutchinson, J.D., AEP®, CFP®

Harvey Hutchinson serves as a Lead Financial Planner with Brown Financial Advisory in Fairhope, Alabama. Harvey is a current member of the board of directors for the National Association of Estate Planners & Councils (NAEPC), having served as the chair of the Accredited Estate Planner (AEP) Committee. Harvey has served as an instructor for Emory University’s continuing education program since 2007 and as a lecturer for the University of Virginia’s School of Continuing and Professional Studies since 2022.