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Estate Planning in the Digital Age

2011 August 12
by Asset Protection Solutions

What happens to your online life when you die? Where will your online assets go? These are questions that have never before crossed the minds of many estate planning attorneys, in fact, case law in this area is just beginning to develop. But as the digital age of social networking, cloud computing and paperless transactions has filtered into nearly every aspect of our lives, estate planning attorneys are beginning to request that their clients provide them with information about their online presence as part of the general estate planning questionnaire. This can be an extensive list, consisting of different user names and passwords from all the different websites that may have your information. Taking an inventory of your digital assets is a crucial step toward beginning to plan for that day when you are no longer physically able to tweet, pay bills online or update your status.

An inventory of each of your digital assets should include the domain name (web address) where your information is stored, a user name and password, and if known, the date the account was created. So what kinds of digital assets should your inventory include?

  • Personal. These are assets that are typically stored on your computer, smart phone or uploaded to some type of sharing website like Flickr or Shutterfly. Typically, personal digital assets consist of photographs, videos, or music playlists. Tax and medical records would also fall under this category as it is has become more and more popular to create digital copies of your most important documents.
  • Social Media. These assets involve interaction with other people and are generally created through websites like Facebook, Myspace or Twitter. Email accounts also fall under this category. Take a look at how many emails are in your inbox right now, go ahead. Each of those e-mails contains information, some vital, some trivial, but each is a digital asset that should be accounted for.

  • Financial. Many banks now offer some type of online banking that allows its customers to access its services without having to enter an actual branch. Many individuals have taken to these online options, utilizing such services as paying bills, checking balances or transferring money. Individuals who use Paypal or Amazon have created accounts which generally contain information about purchases and shipping addresses. Some of these websites even offer the ability to save your credit card information on the site, so that you do not have to enter in the number each time you make a purchase. 

  • Business. Businesses generally collect information about their customers, and that information is often stored on computers. Such information can include customer orders, preferences and addresses. Some businesses use “drop-box” style websites that allow them to upload a document to a secure server so that the customer can access that document by logging into the website and downloading from the server, all on their own personal computer.

You may not realize it, but upon creating an account with many websites, you are asked to click “ok” to consent to the website’s policies in order to proceed with the account setup. At this point, you are bound to abide by the policies of that website. Many websites include some type of clause in their agreement that restricts the user’s ability to transfer access of the account to a third party. Today, many courts have upheld these “click-wrap” agreements, ruling that online accounts are assets that belong to the user and the website exclusively and are not to be accessed by a third party.

In order to circumvent this issue, your attorney could advise you to execute a power of attorney that authorizes an individual of your choice to access your website accounts using your user name and password. Another option would be to include a “digital executor” in your will – a party who has authority to access your accounts. Currently, only a few states in the county have laws that authorize such actions, but there have been a number of cases where relatives have been granted access to email accounts or social media accounts of their deceased family members in order to take inventory or dispose of digital assets. With the rise in the number of ways our assets can be stored digitally, courts are beginning to recognize the need to deal with assets of this type.

For many individuals of the younger generation, their lives are uploaded to the internet as they unfold. Older individuals too have embraced the services the internet has to offer. As a result of this, these individuals have amassed a large amount of digital assets. Taking an inventory those digital assets will prove to be a necessary step as we travel deeper into the digital age. Creating a list of all websites, user names and passwords, keeping that list current and appointing a digital executor will make the distribution of your estate a much more streamlined process. Your family members and your planning attorney will thank you for it.

Jared Bellum is a contributing author to this blog and has been admitted to practice law in the state of Washington.  He practices in the fields of bankruptcy, business start-ups, and estate planning.  JD Bellum, Attorney at Law, PLLC works in association with the Law Offices of Richard D. Seward, PC.

 

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