Digital Estate Planning
What is going to happen to your money after you die? Your house? Your car? You may have already planned ahead for your physical assets. But what about your email account, online photos, or other information stored online? Even though many clients do not think about these types of assets when developing an estate plan, digital assets can be as important as traditional assets like real property, corporate stock or a bank account. The estates and trusts attorneys at Franke, Sessions & Beckett LLC make it their goal to ensure you have an estate plan for both your physical assets and electronic assets.
Last year, the Uniform Law Commission drafted the Uniform Fiduciary Access to Digital Assets Act, which has subsequently been introduced to the Maryland General Assembly in a modified form (SB 429). If enacted, the bill would grant fiduciaries, like a personal representative or guardian, access to a principal’s digital accounts and information. Unfortunately, the technology industry has launched a national effort to block the uniform law, putting passage in Maryland unlikely.
The tech industry does not make it easy for a fiduciary to gain access to a principal’s electronic accounts. As it stands, most tech companies and Internet service providers preclude a fiduciary from having access to electronic accounts unless the fiduciary has a court order. Therefore, even if you appoint someone as the lawful fiduciary of your electronic accounts in your estate planning documents, it can be very difficult to obtain access to the information. The Uniform Fiduciary Access to Digital Assets Act seeks to solve this problem by allowing the fiduciary to “step into the shoes” of the decedent or principal so that the fiduciary has full access to the electronic asset or information.
The Uniform Act defines a digital asset as “a record that is electronic.” This includes a Facebook or email account. It can also include online videos and blog posts. While these type of records may not hold much financial value, they can be very important to a decedent’s family and friends. If a decedent wanted to pass these assets to his or her family members, it is important for the fiduciary to have access to them.
The definition of digital assets can also cover important financial information like online bank account statements, purchase histories on Amazon or Zappos, true digital assets like Bitcoin, and even credit card information that has been stored online. When an individual dies, it may be prudent for the individual’s fiduciary to terminate all online shopping accounts and automated payments so that that the decedent’s name is not used unlawfully. Identity theft can be a concern when a decedent leaves behind online accounts.
You should take a few steps in order to begin planning for your digital assets and online accounts. First, make an inventory of them. Find a secure location, preferably not online, to store this information. A list of your digital assets, for example, could be attached to your will or revocable trust. Next, you will want to consult with a competent estate planning attorney who can help you to draft a comprehensive estate plan that addresses all of your assets.
As part of your estate planning, you will appoint a personal representative. In your Will, you should authorize your personal representative to deal with your digital assets including social media accounts, online banking portals, shopping websites and online accounts detailing your credit card information. The personal representative will have the responsibility to terminate these accounts and manage your social media pages after you are gone. This person should be impartial, trustworthy, and should understand your plan.
Lastly, you may want to write instructions describing what you want to happen to your digital assets and accounts when you die. Do you want your Facebook deleted or made into a memorial? Do you want your digital photos printed? By making the instructions detailed, you will assist your personal representative in knowing your plan with these assets.
Planning for your digital assets is, of course, a part of developing a comprehensive estate plan. You will want to ensure that you have the other elements of estate planning in place, such as disability planning for the future, providing for guardianship of minor children, protecting your heirs’ inheritance from potential creditors, an advanced health care direct, and much more.
If you have questions or want to establish a plan for your digital assets, contact the Franke, Sessions & Beckett LLC in Annapolis, Maryland. We have extensive experience with all facets of estate planning, including asset protection planning, estate and trust administration, and fiduciary litigation and consultation.