Planning for Digital Assets
In the digital age, one consideration individuals need to keep in mind when planning for the future is what will happen to their digital assets after they die. Ownership of digital assets is not always as clear-cut as it is with hard copies of information, and family members’ access to photos, videos, financial accounts, and other information left behind is not guaranteed. If you have not yet considered what will happen to your digital assets, you may need to ask yourself: what digital assets do I have, and what will become of them when I am no longer around?
The term “digital assets” refers to any assets which exist in digital form. As technology evolves, so does the definition of digital assets. They may be personal (e.g. photos and documents stored on a computer, mobile device, or cloud-based storage system), social media (e.g. Facebook, Instagram, and Twitter accounts), financial (e.g. bank, investment, or PayPal accounts), or business (e.g. customer databases or client records). Digital assets may be stored in a variety of locations: on the owner’s personal devices, on the server of a third party such as Facebook, or in the cloud. Who is in possession of your digital assets while you are alive makes a big difference in terms of who can gain access to those assets after you pass away.
Thinking about how you manage and plan for digital assets is important for a variety of reasons. Your digital assets may have sentimental value to your loved ones, or they may be of practical or real dollar value. For instance, the photographs and messages you have saved in a Facebook account may be valuable keepsakes for loved ones who are left behind after your death. A surviving spouse or child may need access to your bank and investment accounts in order to administer your estate and make practical decisions about managing your accounts. Additionally, if you participate in online games or other activities in which you accrue digital “items” with dollar value, your account(s) may have resale value from which your survivors can benefit.
The problem with planning for digital assets is that many well-meaning terms of service agreements and federal and state laws designed to protect individuals’ privacy may also create road blocks for legitimate claimants trying to gain access to digital assets after the owner’s death. There is no law which automatically causes an individual’s digital assets to be “inherited” in the same way that other assets are inherited. Many of these laws do not acknowledge a fiduciary’s access to information owned by the decedent. Furthermore, under some laws a fiduciary may be subject to criminal liability if he or she inappropriately accesses another person’s digital information, yet he or she may also fall subject to civil liability for failing to take certain actions in regards to digital assets.
Appropriate estate planning is one way to avoid some of these problems. Digital assets which are explicitly mentioned in an individual’s estate planning documents using specific language are more likely to be transferred appropriately after that individual’s death. It is important to have a unified estate plan that accounts for your digital assets and names exactly who should (and should not) have access to your digital assets. Seek help from a qualified Elder Law Attorney to assist you in thinking about preserving your digital assets and planning carefully for the unexpected. Take care of this planning sooner rather than later to ensure peace of mind for yourself and your loved ones.
