Digital Assets? Bring Your Estate Plan into Today’s Digital World

With so much of our financial information and personal information now online, estate plans today must address the fact that our digital selves will surely outlast our human selves.

Life, as well as estate planning, used to be much more one-dimensional. Now that our lives are lived “In Real Life” (IRL) and online, estate plans need to include both aspects of our lives, according to this recent article from North Bay Business Journal titled “Your digital life likely will outlive you, so here’s how to bring your estate plan into the modern age.” You could decide not to deal with it, but then you are leaving a mess in digital assets behind for your loved ones to untangle.

Here are a few of your digital assets to consider: bank accounts, email accounts, Facebook page, Linked In profile, online photo albums, blogs and websites. They’re likely to be around long after you are gone.

This is still a relatively new area of estate planning. What often happens is that heirs think they can simply find and use the decedent’s user name and passwords to access their accounts. However, what they learn is that they are legally not permitted to do so. There are state and federal laws, online platform user agreements and a host of barriers to retrieve online assets.

A new law was passed in 2017 in California that attempted to bring order to this chaos back in 2017. The Revised Fiduciary Access to Digital Assets Act allows executors and trustees to obtain disclosure of a person’s digital assets, after the original owner dies but only under certain conditions.

In the recent past, federal and state laws have made it hard for executors and trustees to gain access to these assets without a court order.

Just being the executor or trustee does not automatically give you the right to access assets. There has to be evidence that the decedent consented to disclosure and a court order may be necessary to prove the consent was correct.

The new law mainly gave social media platforms and privacy advocates what they wanted: a requirement of prior consent before disclosure.  However, the end result is that it is easier to gain access to digital assets, if executors and trustees can show that the decedent did consent to disclosure.

However, it’s still not that simple. Here are a few steps to help your loved ones deal with your digital assets:

Inventory every digital asset that you have. Create a list of log-in and password information, plus any “secret questions/answers.”

Tell your trusted family member or friend where that list is. Store it with your other estate planning documents, possibly in your attorney’s vault.

Ask your estate planning attorney how they handle digital assets. Your lawyer will know what steps are necessary in your state to ensure that someone will have legal access to your digital assets after you pass away.

Do not include your digital asset inventory, as part of your will. If your estate goes through probate, all of your account information will become part of the public record.

Many wills don’t include provisions about digital assets. If this is the case with your will, contact your estate planning attorney now to make sure your online life is as protected as your “In Real Life” life.

ReferenceNorth Bay Business Journal (Oct. 19, 2018) “Your digital life likely will outlive you, so here’s how to bring your estate plan into the modern age”
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