By Jeffrey R. Wolfe, Senior Vice President, Manager of Wealth Planning StrategiesPrint This Post
Continuing with Estate Planning Awareness Week brings us to a new area of the law. Apple. Twitter. Gmail. Netflix. Pandora. Shutterfly. Amazon. These online accounts may be a part of your daily life, but have you thought about how you’d like your digital assets handled after you die?
There’s a good chance you’ve already made that decision. You remember, when you thoroughly reviewed the Terms of Service(TOS) before clicking, “I Agree”. The fact of the matter is that most digital assets are controlled by the TOS agreements even though few of us review them. While every agreement is different, many are rather strict in that they do not allow you to assign or transfer your content, and most agreements immediately terminate the relationship upon your death. Apple content, like all the songs you’ve downloaded for example, considers them a lifetime license that terminates upon your death.
So, what do you do? Consider taking an inventory of your digital assets. Make a list of your online accounts, memberships and subscriptions as well as relevant passwords. It’s important to store this information in a safe and secure place. You may want to create a password-protected Excel spreadsheet. Or, it may seem ironic, but a lockbox or safety deposit box may be necessary for such items.
Another thing to do is designate a digital executor. If not in your current estate planning documents, consider specifically identifying your ownership of digital assets and your desire that your executor/trustee have the right to access and control those assets. Remember that your traditional executor/trustee doesn’t have to be the digital executor. If you have another loved one that’s more tech savvy, you could appoint them specifically to this task. While the TOS may block access by your digital successor, at least you’ve identified your intent for someone to try and manage your digital assets. This is a much better start than having nothing at all in your planning.
Next, be specific with your assets. If you want particular digital assets to pass to certain people, assuming such a transfer is allowable, specifically address and designate such bequests in your estate planning documents just as you would your grandmother’s ring or your grandfather’s watch. If you have digital assets of significant value like an online store, active domain names, etc., work with your estate planning attorney to make explicit your intent with such assets.
If it makes sense, make tangible hardcopies of your items. Backing up cloud pictures and music to a hard drive, CD, etc., may leave your family another way to get access to your digital assets. It may seem like you’re moving backwards in technology, but it is another way to control your digital assets.
In the estate planning world digital assets is a gray area of the law. Digital assets are so new and evolve so quickly that the law has been unable to keep up. The Uniform Laws Commission has created a draft code, called the Fiduciary Access to Digital Assets Act, designed to at least allow loved ones’ access to your digital life. To date, though, very few states have adopted the act and traditional rules provide little or no legal precedent on the matter. Consider reviewing your current estate plan and whether you should update your documents to address your digital assets.
The information provided is based on internal and external sources that are considered reliable; however, the accuracy of this information is not guaranteed. This piece is intended to provide accurate information regarding the subject matter discussed. It is made available with the understanding that Benjamin F. Edwards & Co. is not engaged in rendering legal, accounting or tax preparation services. Specific questions on taxes or legal matters as they relate to your individual situation should be directed to your tax or legal professional.