Digital Assets and Estate Planning
What is a digital asset?
A digital asset is any kind of computing device, data storage device, electronically stored information, user accounts (i.e. Facebook, Gmail, Web pages, blogs, Itunes, eBay, etc.), Domain Names and intellectual property rights. The important part is that Digital Assets have a value. Photos from a computer have sentimental value, intellectual property rights have a monetary value and domain names, advertising revenue from social media and virtual currencies have their inherent value. Digital assets are a very important part of Estate Planning and the planning is only going to get more complex.
How do you plan for your digital assets?
This is done in 3 EASY STEPS. 1. Inventory 2. A Taylor Made Estate Plan and 3. Update, Review and Amend (if necessary) your Inventory every year.
- Inventory. The best start is an inventory of digital assets such that it lists each asset, how to access it and your wishes regarding its disposition. Williams & Williams Law, LLC has experienced Arizona Estate Planning Attorneys regarding the disposition of digital assets. Here is our Digital Audit PDF to get you started: The Digital Audit Questionnaire.
- Taylor Made Estate Plan. Your estate plan must include provisions and powers within your Trust, Last Will and Testament, Pour Over Will and Financial Power of Attorney that allow an appointed individual, a Fiduciary, the right to access online accounts and to use the information in the fulfillment of their duties. These provisions should be specifically worded to grant authorization for use and disclosure of private or personal data. At Williams and Williams Law, LLC you will receive a Taylor Made Estate Plan with a free digital audit.
- Update, Review and Amend. It is important, since passwords are changing all the time and new digital assets are being created every day, to constantly update your Inventory so that if you are incapacitated or deceased, your inventory of digital assets is accessible with ease.
How do you administer digital assets if planning was not done in advance?
If you are a fiduciary and are responsible for marshalling and distributing digital assets that were not planned for in advance, just remember SATA.
Statutes. With this being a new area and developing area of estate planning, remember, do not violate state and federal laws. Computer Fraud and Abuse Act and Stored Communications Act are two federal areas of law that can be violated if you intentionally access data without authorization.
Authority. Show that you have authority to access the information or account. Provide the online provider with fiduciary authority and guardianship/conservatorship appointment letters or a death certificate. The online provider may consider this lawful consent under the Stored Communications Act.
Terms of service (“TOS”). Every online provider has them. It is the contract that you enter with the online provider while you use their program/app. For example, prior to using Facebook, a user is required to agree to the Terms of Service prior to being able to use Facebook. Review the TOS and make sure you are not in violation of it.
Act quickly. Most of these digital assets will require timely access. Several online providers may delete accounts due to the lack of use. Others, require payment to stay active. If a digital asset has monetary value, it may be a duty of the fiduciary to maintain the digital asset until is distributed.
* Always remember to contact an experienced Arizona estate planning attorney if you have any concerns with certain actions being in breach a fiduciary duty, violating a law or term of service or if you would like advice on the proper administration of an estate. Williams & Williams Law, LLC is always here to help. Contact us for your free consultation! Come meet the father-son team.