Many people don’t like to talk about death but they will if it has anything to do with protecting their assets – including digital assets. Digital assets are your online accounts, digital currencies, online accounts, passwords, digital files, user names, and any Terms of Service Agreements (TOSA) that you signed. With the growth of digital technology and use, these assets are expected to be worth over US$5 billion by year 2020. You will need and should have a will drawn up to protect these assets either after death or in case of incapacity to ensure that your loved ones gain legal access to these assets.
The First Step: Assigning Assets
Before anything else, you will have to list down all your digital and traditional assets since your will or estate documents will incorporate all assets. You will need a fiduciary, an executor for your traditional assets, a personal agent with power of attorney in case of incapacity to make decisions, and a trustee. These are the individuals chosen by you to manage all your assets according to your wishes so it is important to select them wisely.
The main issue facing digital assets is the fact that they are not tangible assets and exist primarily on the Internet. The individual tasked to manage your digital assets will have to deal with extenuating circumstances far different because these digital assets may or may not have monetary value. In fact, they are valuable to you because they represent something sentimental to you like a memory or a milestone.
The Second Step: Understanding the Laws on Digital Assets
There are state and federal laws that are in place to specifically protect digital assets. These laws include fiduciary access even by you because of terms of use agreements and privacy terms that you agreed to.
Under these laws, even those you entrust your digital assets to may have difficulties accessing them unless you provide explicitly and legally give them access to your online accounts with the knowledge of the companies who handle your online accounts. These laws are also always under scrutiny and subject to change because they exist in very dynamic times. For instance. the Uniform Fiduciary Access to Digital Assets Act was revised in 2015 to expand the law and it is slowly being enacted across the country allowing great access to digital files both before and after death.
The Third Step: Creating a Digital Asset Document
This is a document that should be done in consultation with an estate planning attorney. It should have your authorization and consent to allow access to your digital assets, a durable power of attorney and trustee agreement. The document should be signed by all parties concerned with the consent of their respective agents/attorneys to ensure that all privacy matters are addressed properly.
The document should also have an inventory of your digital assets listed in a proper asset form that conforms to a commercial DEP service that can preserve and store your user names and passwords unless you use the same names and password for all your online accounts.
If you do agree to use any services related to the protection and storage of access to your digital accounts, it is crucial that you inform concerned parties otherwise it will be all for naught.
Aside from creating your digital asset document, make it a point to go over all online agreements include social media accounts and search engines. Companies like Google have policies that allow you to indicate access to your account for emergency or unusual circumstances. With Google, the policy is called Inactive Account Manager while for Facebook , they call it a “legacy contact.”
In conclusion, a digital asset estate plan is important for the following reasons:
- Your digital assets may not be worth anything now but they could be a tremendous value in the future – and insuring them with an estate plan is one way to protect them.
- The digital asset estate plan is your legacy and story. They can live forever and be proof of your accomplishments and impact in the lives of others.
- This kind of agreement can prevent identity theft.
- You can keep certain information confidential and secret – until the time is right.
The estate lawyers of Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. To start of discussion about creating an estate plan that includes your digital assets, request a consultation with one of our experienced estate planning attorneys.
