James e. Brill 2014-12-23 18:43:33
Does Alan Turing work for you? The capture of a German Enigma machine by Allied forces during World War II resulted in the deciphering of an extremely sophisticated German naval code by a secret British group led by the brilliant Alan Turing. Winston Churchill described Turing as having made the single biggest contribution by an individual to the Allied victory in the war against Nazi Germany. If something happened to you today, would it take another Turing to decode all of the cryptic material in your digital files and on the legal pads, Post-it notes, and other detritus scattered around your desk? Does your partner, associate, staff, spouse, significant other, or even your executor have the deciphering skills of Turing? And—be honest, now—can you even make sense of those seemingly unrelated notes and hen scratches? Many of us have detailed financial and personal records stored on some electronic device. Because of the highly personal content these devices hold, some users will combine multiple passwords with encryption. We are often asked to provide a username and even to conjure up unusual questions along with answers known only to us. Overlaying the enormity of these issues is the professional responsibility for maintaining confidentiality of client matters and restricting access to that information. Enter cloud computing and new security issues and security codes, passwords, and all the rest. In the unfortunate yet unavoidable case that one of us dies, lawyers, trust officers, accountants, and family members know how to sort through desks, filing cabinets, safe deposit boxes, and other places to locate paper records relating to assets, liabilities, taxes, and personal information. But they have little experience in locating information found only on computers, smartphones, tablets, online payment systems, email, and other digital sources. And then, to complicate things even more, there is social media. Once your data is stored in the cloud or any place other than your own devices, your successor will face privacy laws and service agreements that restrict disclosure to anyone but you. In an attempt to reduce these problems, on July 16, 2014, the Uniform Law Commission approved the Uniform Fiduciary Access To Digital Assets Act that would permit access to this data by personal representatives, guardians of persons’ estates, trustees, and agents under powers of attorney. The adoption of enabling legislation is pending. This development followed Google’s Inactive Account Manager that notifies and permits those you trust to access content from several Google services after a certain period of inactivity. You can even choose that particular content automatically be deleted. These and other “solutions” will evolve and expand, but not uniformly, comprehensively, or quickly. The best solution is for you to maintain some form of backup along with the necessary instructions to those you trust. We need to have that information available to those who will be called upon to settle our affairs when we die. If we take that information with us to the grave, we will leave behind a daunting task for our partners, associates, and family members to face. So act now. Alan Turing is no longer available to decipher your codes. JAMES E. BRILL is a 1957 University of Texas School of Law graduate and a solo practitioner from Houston whose practice emphasizes probate, estate planning, and real estate. He has been the principal author of every edition of the Texas Probate System and is a recipient of the Presidents’ Award from the State Bar of Texas.
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