The new frontier for estate planning attorneys is planning for digital assets.  More Americans are embracing technology in more parts of their lives, both business and personal.  We no longer receive paper statements or canceled checks for our bank accounts.  Some of us have invested in cryptocurrency.  We take photos on our phones and upload them to cloud storage.  We buy and read books through “e-readers.”  Technology touches every part of our lives, but we have little tangible proof ownership!  This creates some challenges for estate planning.

Financial Accounts

Some financial assets, like bank and investment accounts, are not digital themselves but provide digital management options.  Make a list of these accounts with custodian, account type, and account number.  Then print that list and put it with your estate planning documents.  This will make it much easier for your Executor or loved ones to locate your assets in a time of need, without needing any sort of digital access to them.  They can simply call the bank or walk into a branch and ask for help.

Personal Accounts

There is no simple solution for assets that are truly digital, such as email, social media, photo sharing, music, etc.  In our practice, we make every effort to plan for digital assets through our Durable Power of Attorney and Last Will and Testament documents.  But most digital assets are really “non-probate” and pass according to the hosts’ terms of service.  For that reason, it is imperative that you inventory your digital assets and follow each host’s process for what should happen when an account holder dies.

The major social media and email providers have established processes for naming surrogates.  Depending on the provider and the choices you make, the surrogates may receive total or limited control of your account.  In some cases, the surrogate will only have the ability to terminate the account and delete its associated data.  For example, Facebook allows users to name a “Legacy Contact,” and gives users several choices about how much access to give that contact.  If the user dies, the Legacy Contact can have access to the account after submitting a death certificate and proper paperwork.

The law around digital assets is evolving every day and can be confusing.  Please reach out if you have questions or concerns.


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