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Estate Planning for Your Digital Legacy

By Alexandra Smyser

What Happens to Your Digital Presence When You’re Incapacitated or Dead?

I recently met a couple who were both digital artists. They each had their own computers that stored decades of digital art work. The husband jokingly said, “If something were to happen to me tomorrow, make sure you bury me with my hard drive.” His work was his life and he wanted to make sure that it followed him regardless of his state of mind.

The conversation brought up an interesting discussion on digital assets. What does happen to your hard drive if you were to become incapacitated or die? Additionally, most of us now partake in documenting our lives through accounts like Facebook, LinkedIn, Twitter, and Instagram. Our thoughts and pictures and recordings on these platforms create an intimate digital record of who we are, where we have been, who our friends and business associates are. This record is far more nuanced and revealing than any diary could ever be. Moreover, if you have a blog, domain name or an online store, your livelihood may be locked up in your computer’s hard drive, along with your other important files.

As more of our lives are lived in the virtual world, it is imperative that you make plans for what will happen with your online accounts upon your incapacity or death. Planning for digital assets will ensure your privacy is protected, preserve your personal history or digital work, and make things easier for your personal representative and family.

Each online service has its own rules for who can access your accounts. For example, Google services and applications are subject to the Terms of Use agreement between the company and the user and those rights are not extended to family members and heirs.  This is perfect planning if you don’t want anyone to read your private emails.  But, there is likely valuable information in your Gmail account like billing notices and financial communications that you want your personal representative to be able to access and Google’s policy could pose a problem.

Some states are addressing these technological issues with legislation that makes it easier to manage accounts after death or incapacity.  For example, Delaware recently became the eighth state to pass a law that governs how digital assets are treated when a person dies or becomes incapacitated.  In the most comprehensive law of its kind, digital assets in Delaware will be treated the same as personal assets upon a person’s death or incapacity.  The companies holding the digital assets are required to grant access and control to the personal representative of the estate. This law will be powerful for those who are settling estates in Delaware, and undoubtedly other states will be passing and updating legislation relating to digital assets in the coming years.  However, even without a comprehensive law, there are ways to protect your digital assets in an estate plan.

If you would like to control who can manage your digital assets after your incapacity or death, you can work with an estate planner to create specific estate planning authorizations. For example, in California, where I practice, I have been including in client documents a provision that a trustee is authorized to access digital accounts and digital devices. I also draft an Assignment of Digital Assets to include with their estate planning documents—which assigns digital accounts, domain names, software, computers, tablets, smartphones, into their trust.  I advise clients to think about what they want to do with their digital assets and create a separate letter that details how you want each item or account handled.

It is also wise to keep an updated list of all accounts and passwords so that your personal representative can easily access your accounts.  This list should also include passwords for your debit card, house alarm, smartphone, and computer; and answers to security questions (mother’s maiden name, favorite movie, city born).  It would be helpful to your personal representative if you included a list of automatic payments and when they are debited to your account.  Obviously, this is sensitive information, so you will have to decide what you are most comfortable with.  There are online services that allow you to save all of your passwords and name trusted individuals to access them if you are not able.  Knowing your passwords will be priceless to someone who has to step into your shoes if you become disabled or when you die.

The digital world brings with it new considerations and the time to include this into your estate plan is now.

Alexandra Smyser is an Associate Attorney at the Law Offices of Donald P Schweitzer in Pasadena, Ca. She handles all areas of Estate Planning including trusts, wills, probates, general and limited conservatorships, and special needs trusts. For more information on estate planning contact Ms. Smyser at (626) 683-8113 or visit http://www.pasadenalawoffice.com

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