Public Service Announcement: Grief and Legacy Contacts
Today’s blog is more of a public service announcement than a conventional piece about well-being issues in the legal profession. I want to talk about a proactive step we can take, and urge our friends and family, to take which will reduce our and their stress when we lose someone. Think of this as a future stress reduction strategy.
I am writing a separate blog on the travails and tribulations of being an executor since many of us are the only lawyer in our families and it is logical for us to take on the executor role. But being the executor of my father’s estate has been fraught with challenges, largely involving banks and under-trained staff, and I think that we, as lawyers, need to consider what we can do to reduce the stress and strain that seems inherent in settling estates.
Here’s a taste: I go to my father’s bank, having proved to the bank’s estates group’s satisfaction that I am the executor, with the safe deposit box key. I explain that I need access to my dad’s safety deposit box to retrieve his will. This causes a kerfuffle among bank staff—have they never had an executor arrive to take the final will from its secure location?
Eventually, they tell me that they will allow me to be in the presence of bank employees who will open the box and conduct an inventory of its contents in front of me, but they say that I cannot remove anything from the box until probate is granted. There is one little problem with this: you need to submit the original will to apply for probate! I tell the bank employees that I will be removing the original will because probate cannot happen without it. They go off to call the estates department in the city in their bank’s name and then declare that they will allow me to take the will, but I cannot touch anything else in the box.
I stand there while two bank employees handle my dad’s very personal documents, and they make up names for referencing them for the inventory they are conducting. Most of the documents are not interesting—and there was no stash of hundred-dollar bills or exquisite jewelry! Instead, I had to explain letters between my parents during their divorce and documents asserting who did what and why. This was intensely personal and traumatizing. I was ready to cry by the time they handed me the original will.
When you lose someone you love, you grieve. Grieving is a process that engages your emotions, and it is intense. You can learn more about grief and coping strategies in an article Dr. Brian Forbes, the head of Assist’s counselling program, wrote for CBA Alberta Law Matters. I found my interactions with the bank upsetting during my dad’s final weeks, and their continuance after he passed away pushed me to the brink of emotionality. I am sharing this because when you are serving as executor, you will have to deal with frustration, and it is tougher when you are grieving. Please consider meeting with an Assist counsellor to develop strategies for when you face these inevitable challenges.
My experience as an executor has been less traumatic than what other executors and family members may face. My dad didn’t have digital assets to speak of. We cancelled his cell phone, and apart from his email account, there wasn’t much to deal with. He did not use his cell phone for photography, so I think we wiped it and recycled it.
But often the person who passed away keeps much more of their lives on their phones. I hadn’t thought about this, but I recently learned that family members often want to access their loved ones’ phones because they want current photos for a memorial service or just to feel close to them again. This is easy when the loved one has shared their phone’s password (and not changed it since sharing it)—you just enter the password.
What happens if you don’t have the password? You encounter absolutely inflexible stonewalling from phone manufacturers and service providers unless your loved one named you as Legacy Contact deep within the settings function of the device. If you are like me, you had no idea that this setting existed (and the lawyer in me wonders what happens if a different person is named to deal with digital assets in a will…). The result is that you are told that you need a court order (!) to compel them to unlock the phone!
I read stories about family members going to funeral homes and holding a cellphone up to the deceased person’s face trying to use facial recognition software to get access. But apparently laxness in facial muscles means that this doesn’t work. Imagine that you are grieving, and you are trying to access special photos and you have to experiment with facial recognition software. Or, probably more commonly, you don’t realize that you won’t be able to access their phone until after they have been buried or cremated, and your only remedy is to ask the phone manufacture or provider to unlock the phone.
I don’t know how non-lawyer people react when they are told that they will have to apply for and obtain a court order to gain access to a cellphone—probably like I did when bank staff told me I couldn’t remove my dad’s will from the safe deposit box until probate was complete. But unlike my situation where the bank staff eventually saw reason, it seems that privacy rights to cellphone contents survive death, and if the cellphone holder did not address the issue of who could access their devices while alive, your only remedy is through the courts.
A wonderful wills and estates lawyer in Alberta told me that you can meet this requirement for a court order by applying for probate. Those of us who don’t practice wills and estates may have retained the idea that not all wills have to be probated (depending on the type of assets and the dollar value), so you may have to apply for probate solely to get a court order authorizing unlocking of a cellphone. Seriously. But the wonderful wills and estates lawyer told me that applying for probate using Alberta’s new online probate system is quite easy and inexpensive.
And there is one more wrinkle. We know that children, at ever younger ages, have cellphones. As parents, we purchase the phone and make all the payments. But if the unthinkable happens and a minor passes away, parents cannot unlock the phone without a court order. And who thinks of delving deep into a cellphone’s settings to address Legacy Contacts for a child?
Losing a child is generally considered the most devastating type of loss. Imagine wanting to see photos of your child and things that were special to them and being told that you need a court order—it is much worse than undertrained bank employees telling me that I couldn’t remove the original will from my dad’s safety deposit box until I had probate. Or telling a friend who was trying to have his wife’s name removed from their safety deposit box after she passed away that he just needed his wife’s signature on the authorization form.
Many parents insist that their children provide them with their phone (and computer) passwords. But I have been a parent of teenagers and kids sometimes change their passwords to get around this—or they just forget that they should communicate their new password to their parents. I don’t know how often parents of teenagers check to ensure that they have access to their children’s devices. We live in a fast-paced high-tech world, and it is hard for us to stay on top of everything.
So, here is today’s public service announcement. Please designate a Legacy Contact on your devices, and please ensure that your close family members and friends do so as well.
If you have an iPhone, here are the instructions: https://support.apple.com/en-ca/102631. Other phones have their own systems, and you may want to address legacy contacts on your other devices. I found a helpful article in the Washington Post for non-Apple devices.
Be aware that Legacy Contacts can be changed, and that if you are the Legacy Contact, you only have three years from the time you are granted access before all of the accounts will be deleted.
I admit to being the shoemaker whose kids didn’t have shoes—I didn’t have a will until I was in my mid-50s. Somehow signing a will felt like an admission of my mortality and I found reasons to delay making and executing my will for years (or decades.) But signing my will didn’t cause me to keel over immediately, and I am now a zealous convert. And now that I am aware of the impact that being denied access to a loved one’s phone has on a grieving person, I am spreading the word.
Completing the Legacy Contact screen on your phone takes less than two minutes. You are asked to print the access key—a QR code—and store it with your will or it can be texted to the Legacy Contact. You can remove your Legacy Contact, and you can view the access key on your phone so you can print a new copy of make changes. Definitely something to think about if your relationship status changes.
Even if you aren’t sure that you want to designate a Legacy Contact, you may want to check whether your phone shows a person as Legacy Contact. When I reached the Settings screen where I was to designate my Legacy Contact, I found that it was already populated with the name of my son who happens to be my executor. I don’t recall ever having provided this information. If I did, it was many years ago. A colleague checked hers and found her husband’s name there but didn’t remember entering it either.
There are complex issues relating to information on our cellphones. I was surprised that the privacy rights of a deceased person trumps grieving families’ emotional and psychological needs, but the tech industry created this regime based on its perceptions of balance. I wonder about confidential and privileged emails and documents that lawyers have on our phones—has anyone addressed this issue? Should your Legacy Contact be a lawyer to ensure that confidentiality and privilege aren’t compromised? But how does that fit for lawyers who keep intimate images on their phones that they may not want their law colleagues accessing?
People with bigger brains and more expertise than me are no doubt engaged on these questions. But for the sake of your family and friends, please take action to ensure that someone you trust can access your devices—doing so is a gift that they will appreciate at a very sad point in their lives.
Loraine