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Factoring Digital Assets into Your Estate Plan

If you’re like me, you tend to accumulate more and more “stuff” as the years go by. Even though it’s not taking up space in your house, the same goes for digital assets and media—think about all of the photos, travel rewards, digital financial records, electronic statements, social media communications, email accounts, drop boxes, iCloud storage, eBay accounts, PayPal accounts, iTunes accounts, Amazon accounts, credit card reward points and more that you’ve collected over time.

All of these digital items count as assets in your estate. Have you thought about what will happen to them if you become incapacitated? Many estate plans do not have specific provisions that address the disposition of digital assets and should be updated accordingly.

When you die, your fiduciary must gather, account for and dispose of your assets. This includes closing financial accounts and paying your debts, taxes and expenses before disposing of all of your assets per your documents. The first issue is that many of your digital assets are protected by passwords, security questions and possibly encryption. Will your fiduciary be able to crack the code?

Even if the fiduciary is able to obtain the passwords and security question answers, the providers’ terms-of-service agreements (TOSA) may still forbid account access by anyone except the account holder. Many online TOSAs, if you can locate them, are silent regarding incapacity and/or post death options. When the account holder dies, this has the potential to frustrate a fiduciary and the family members left behind.

Such was the case in 2005 in which Loren Williams, age 22, was killed in a motorcycle accident. His mother wanted access to his Facebook account to help her cherish his memory. Thanks to one of his friends, his mother eventually uncovered his password. However, Facebook site administrators changed the password, citing company policy as the basis to deny her access. Afterwards, the account was taken offline. She sued and eventually won but was never granted the full access she sought. In the end, it was little more than a moral victory.

Laws at the federal, state and local level generally have not kept pace with changes in technology. Industry leaders and public policy groups continue to advocate for updated laws and have made some progress. This March Tennessee Gov. Bill Haslam signed legislation that will provide guidance and authority for executors, guardians, trustees and others to access a deceased individuals’ digital assets—that law goes into effect July 1. Other states are in the process of proposing and approving what’s called the Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA).

To ensure your fiduciary can access your digital assets, either to preserve, transfer or close accounts, your estate planning documents must indicate how you wish to dispose of them. In states that have not yet adopted a law that addresses fiduciary access to digital assets, your attorney may resort to some version of a form that authorizes the release of electronically stored or digital information.

Given the lack of uniformity of current laws dealing with digital/cyber assets, be sure to ask your estate planning attorney about the law in your state. If your state has adopted a version of the Revised UFADAA, be sure to invoke those statutory provisions in your documents. If not, ask your attorney to draft an authorization form for the fiduciary to access your digital accounts/assets. This will help ensure that your legacy is fully carried out and that those left behind will benefit from your foresight.

Matt Buyer can be reached at 901-259-5487 or by email at [email protected]

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