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How To Secure Your Digital Legacy in Your Estate Plan

Last update on: Jun 17 2020
Estate Planning

Almost all of us have digital assets that should be included in our estate plans.

Technology and digital assets have become major parts of most of our lives, often more than we realize.

A digital asset is any account, electronic device, or portion of a website that is password-protected.

That covers a lot of ground.

It can include your smartphone, especially its photos and text messages.

Other commonly held digital assets are email accounts, financial accounts, payment accounts (such as PayPal), digital currencies and any online places (the cloud) where you store photos.

You also might have digital liabilities, such as automatic payments.

Of course, various social media accounts are digital assets, such as Facebook and Instagram.

A website or blog, whether as a business or hobby, is a digital asset.

Your computer, if it is password-protected, also is a digital asset.

These items need to be included in your estate plan to ensure someone can access and manage them after you are unable to do so.

That is particularly important for online financial accounts and automatic bill payments, but it is also true for the other assets.

The law lagged behind the real world until very recently.

Many attorneys argue that federal anti-hacking law makes it illegal for anyone, even your executor, to access these accounts after your death.

In some cases, heirs or executors had to sue to gain access to email and other important accounts.

Fortunately, most states now have adopted versions of the Fiduciary Access to Digital Assets Act.

This is a model law developed by the Uniform Law Commission for the states to use to develop their own laws.

Since its 2015 proposal, about 41 states and territories have adopted versions of the law. Others will consider it in the next year.

The law intends to give fiduciaries the same rights to access and manage digital assets that they have for tangible properties.

The details of the law differ a bit from state to state.

In general, the law gives executors, trustees and agents the automatic right to manage a person’s computer files, web domains and virtual currencies.

But for an executor, agent, or trustee to have access to electronic communications, such as email, text messages and social media accounts, the original owner must have consented specifically in a will, trust or power of attorney.

Some online service providers also established their own ways for an owner to consent to access.

Some providers have written policies regarding ownership succession, to which users consent when they agree to the terms of service agreement.

Others have a process by which the owner appoints one or more people to have access to the accounts upon their death or incapacity.

I’ll have more tips for securing your digital legacy in next week’s edition of Retirement Watch Weekly.

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