In January 2003, as he approached his 60th birthday, Robert De Niro told Esquire magazine that there was one thing more than any other that he regretted:
I always wanted to chronicle the family history with my mother. She was always interested in that. I wanted some researchers I’d worked with to talk to my mother, but my mother was a little antsy about it. I know she would’ve gotten into it . . . But I wasn’t forceful, and I didn’t make it happen. That’s one regret I have. I didn’t get as much of the family history as I could have for the kids.1
How many of your clients have expressed similar regrets about their own families? Yet, today we have opportunities that never existed before to preserve the histories and life lessons of our family members. The project can be as simple as a collection of scanned letters or photographs, as insightful as an ethical will or as comprehensive as a personal or family history documentary. Encourage your clients to take the first step in this direction. It may be what the family is most grateful for in the years to come.
A Competitive Advantage
Advising your clients on their digital legacy can be a significant differentiator for your practice. It’s, after all, a natural transition from your conversations about estate-planning goals, and you’re most likely privy to family dynamics and challenges. The trusted advisor who initiates the discussion and implements a plan is likely to enjoy a deeper—and longer—bond with the client, his family and his heirs. Large wealth management companies, such as Wells Fargo & Co.’s Abbot Downing unit and U.S. Bancorp’s Ascent Private Capital Management, are well aware of this correlation and have staff historians to compile family histories for their ultra-wealthy clients.2
Options for Legacy Planning
The following options for capturing your client’s legacy are both cost effective and require minimal staff involvement, yet are perceived as a value-add.
• Ethical will or legacy letter. In its simplest form, you can provide a template and instructions for writing an ethical will or legacy letter, and let the client handle it. A videotape of your client reading his legacy letter is more effective and powerful than a written copy. It can be recorded in your office by a staff member, kept with the estate-planning documents and updated/re-recorded as necessary.
• Questions for client response. “Priceless Conversations,” developed by Scott Farnsworth of Sunbridge Network Advisors, provides excellent examples of insightful questions.3 For example, What was the best financial decision you ever made? How do you define “true wealth”? What about your children makes you proud to be their parent? The client selects the topics and specific questions most relevant to him and records his answers on audio to be shared with family or saved with estate-planning documents.
• Videotaped legacy interview or personal documentary. You can refer your client to a qualified professional videographer for this interview at your client’s home or office or in your office. You may wish to private label this service and charge for it separately. This option is more powerful and requires more time and money but incorporates interviews, photos, music and other material. As such, it has greater longevity, and copies can be made for every family member. Because a personal documentary captures the smile and twinkle in the eye, it’s more likely to be viewed by and, therefore, influence future generations.
Videos for Specific Uses
Despite the significant benefits of capturing a client’s legacy and life lessons on video, video recording in the estate-planning context has typically been used when a contested disposition is anticipated. Colleen Barney, an estate-planning attorney in Irvine, Calif., described an attorney videotaping an older client to substantiate that the client was acting on her own volition. The video included the client: (1) talking about the rationale for her decisions about the distribution of assets, (2) taking the Folstein Mini Mental Exam (to demonstrate testamentary capacity for decision making), and (3) signing the documents.4 This use of video doesn’t happen frequently, but if there’s potential for litigation by the heirs, it can be a valuable tool.
Consider using a video if your client has:
1. A family business. The founder’s expression of values, challenges and life lessons can lead to greater understanding and appreciation among family members of what the business means to the founder.
2. A family foundation or philanthropy. Seeing the wealth creator’s enthusiasm for certain causes can inspire and engage the heirs.
3. Minor children. Advice and appreciation for guardians can be expressed in a heartfelt way.
4. A terminal illness. Conversations about their expectations and hopes for the surviving family members can be powerful and inspirational.
Legacy Letters or Ethical Wills
In the movie “Superman,” Clark Kent goes to the North Pole for some reflection time. He disperses a bag of crystals that form a remarkable snow cave and places the master crystal inside. His father (by now long dead) arises and starts sharing and imparting life lessons.
That 1978 movie is still the ultimate depiction in cinema of an ethical will or legacy letter. Through those magic crystals, Clark Kent learned that he was more than just the adopted son of kind, down-to-earth mid-western farmers and what his responsibilities were for living among humankind.
Instructions to Clients
Simply put, a testamentary will conveys possessions; an ethical will or legacy letter (two terms for the same concept) conveys thoughts and beliefs and can impart life lessons or bestow deep and personal blessings on others. For clients disposing of substantial wealth, a legacy letter can help the next generation become ethical stewards of the family funds.
Here are some sample instructions you might want to pass along to your client:
Make a list of topics that you would like to cover. Is there a life event and lesson you can draw from? Many people regret shortcutting their education and use their ethical will to instruct their grandchildren not to do the same. Do you wish to tell your children that, despite everything, you’re proud of and happy with them and their choices in life? Be careful about damning with faint praise or favoring one child over another.
Perhaps you feel the need to explain some decision you made or direction that you took. Are there values you hope your descendants will follow? Do you want to record family history? Maybe you just want to say “thank you for all the love and support.”
An ethical will on video allows a personal, emotional delivery of the message. With professional help, the end product can cover your family history and give the ethical will priceless context.
Clients Can Create Own Legacy
Providing information for clients to create their own digital legacy gives an added value. Encourage them to take on the project of preserving their history, starting with the creation of an inventory of items and the family members to consult before doing so, right through to digital storage and dissemination. Consider whether your clients’ greatest legacy still resides in their hearts and minds—and what steps can be taken to preserve stories, memories, advice and life lessons.
Preserving Existing Material
Digitizing existing artifacts helps avoid the age-old tradition of pillaging old photo albums and the inevitable dispersion and loss of papers with the passing of each generation. Your client can now create enough copies to ensure that all family members benefit and help ensure the survival of the family legacy.
Take the following four steps:
Step 1. Identify with your client the categories of materials that exist and are likely to be significant. Here are some suggestions:
Certificates and diplomas,
Old film negatives,
Slides and video,
Immigrations papers and passports,
School reports and yearbooks,
Writings and even scrapbooks,
Audio tapes, and
Sketches and paintings.
If possible, speak to more than one family member about this topic to avoid the criticism that the exercise missed something with sentimental value to someone.
Step 2: Identify the location of the material and who, outside the immediate family, may have access to information. If the project is to include artifacts from the client’s parents, grandparents or beyond, you may need to consider contacting the cousins.
Step 3: Appoint a person to “own” the task (that is, to take responsibility for getting it done). This could be a family member, someone from your office or a third-party personal historian. Set deadlines for each appointed person.
Step 4: Spend some time gathering contextual information about the material you’ve collected, and create a manifest. This step is especially critical for photographs. The “who, what, where, when and why” of the image can be extremely enriching.
So far so good. You have the material and the manifest. You’ll now need to transfer or scan the material and then find a place to digitally store it.
Digitizing the Material
Physical material needs to be digitized. Photos and papers are scanned, film and video are “transferred” and larger or awkward items can be photographed or filmed. Always work with the original, whenever possible, even if that means going back to the negatives.
Because many office scanners have poor optics and low-resolution options, scanning should be done on professional equipment that allows you to set the values for the source material (for example photo, positive or negative film, document), the resolution and the output file format. As a rule of thumb, scan photographs at twice print resolution, that is, at 600 dpi, and always scan film and slides at 2400 dpi or higher. Avoid scanner settings like dust removal, color correction and sharpening. It’s best to capture the material “as is” and make any adjustments later—always preserving the original.
Most archivists recommend that scanned images be saved as uncompressed TIFF files, which ensures the highest fidelity but the largest file sizes. You can also consider saving in the JPEG format—at settings for maximum quality.
Film and video should be transferred as uncompressed files. This requirement means that the transfer will need to output the file to a hard drive and be stored as “digital video” or “DV.” Avoid compressing files as MPEG-2 (the compressed format for DVDs) or MPEG-4 because these involve compression and a loss of quality. These formats can be created later, if needed, from the original, uncompressed video.
Which of the popular technologies for storage today (DVDs, flash drives, computer hard drives, solid state portable storage, on-site or cloud storage) will prevail in the future? Technology will pass us all, despite our best intentions and planning. Storage decisions are important. Just ask any film archivist about nitrate film decay. Even more recent tape-based technology can degrade; computer hard drives are susceptible to strong magnetic fields and can crash due to failure of any of the moving parts; and solid-state flash drives may get lost or their contents accidentally erased. DVDs, which aren’t sensitive to magnetic fields, can still be impacted by ultraviolet rays and sunlight.
We advise an “all of the above” or redundant approach that has material stored in a format for display (for example, PDFs, hard copy albums and online displays, such as Facebook, Flickr, a family blog or a website) and at least two other formats. One might be a series of archive DVDs (such as JVC archival grade DVDs) and another might be a “solid state” drive (spinning hard drives contain moving parts and may fail more often than a solid state drive). If the budget permits, choose an online storage option.
Using digital technology to help clients capture their legacy is a benefit for them. Advising on their digital assets (any work or possessions stored on a computer, the Internet and/or the cloud, such as emails, photos, videos, medical records, tax documents and account passwords) is another.
As we move more toward paperless statements and online bill payment, the list of digital assets and their potential value continues to grow.
Often the monetary worth of digital assets is unknown, adding to the complexity of estate planning. For example, an author dies shortly after his first book was published and well received. His laptop contained the second novel, which turns out to have great value. Is the person who gets the laptop also entitled to what’s on it?
Digital assets are such a new phenomenon that most courts haven’t developed rules for how to distribute them when there are no instructions in the will or trust. Even when there are clear instructions regarding digital accounts, there are still legal hurdles to consider. Privacy laws are so strict that nearly all social networking sites have policies in place for dealing with the death of account owners.
Recognizing the importance of planning for the disposition of a client’s digital accounts, Laura Meier, an estate-planning attorney in Newport Beach, Calif. uses a Virtual Asset Instruction Letter (VAIL) that divides assets into five categories, which allows for each to be handled separately, with the option of different instructions (for example, delete, share or archive) and different personal digital representatives. She advises clients to save their VAIL to a flash memory drive, not on their computer’s hard drive.5
The Next Best Thing
Robert De Niro’s parents have passed, and he must live with the regret of not having recorded their stories from their own mouths. But he’s now done the next best thing. At this year’s Sundance Film Festival in Park City, Utah, he premiered a personal history documentary he made about his father, called “Remembering the Artist: Robert De Niro, Sr.” The film will air on HBO in June 2014.
Ethical wills and personal history documentaries are now a realistic option. Your clients’ most important legacy isn’t their wealth, it’s the stories and memories they’ll leave behind. Just ask Robert De Niro.
—The authors acknowledge and appreciate the comments of the following estate-planning attorneys: Colleen Barney of Albrecht and Barney Law Firm in Irvine, Calif.; Thomas Garrett of Garrett Carchidi, LLP in Newport Beach, Calif.; Laura Meier of Meier Law Firm in Newport Beach, Calif.; and corporate trustee Karen Prinz of First Foundation Bank in Irvine, Calif.
1. Cal Fussman, “What I’ve Learned,” Esquire (January 2003).
2. Liz Moyer, “Lenders Pull Out All The Stops for the Ultra-Rich,” Wall Street Journal (March 21, 2014).
3. Scott Farnsworth, “Priceless Conversations–Suggested interview questions on approximately 30 different topics,” SunBridge Network, Sunbridgelegacy.com/Priceless_Conversations1.html.
4. Phone interview on March 16, 2014 between Colleen Barney and Victoria Collins.
5. Phone interview on March 17, 2014 between Laura Meier and Victoria Collins.
Victoria Collins is a Director of First Foundation Inc.
Jane Shafron is a personal historian and the founder of Your Story Here LLC, a full service video production and digital imaging company specializing in preserving personal history and recording family stories.