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Estate Plans Need To Address Digital Assets: What About My Facebook!

Posted on: June 16th, 2016
In simplest of terms, an estate plan lays out the wishes of an individual for the handling of someone’s assets upon his or her death.  It can also help maximize the value of one’s estate by reducing taxes and other expenses associated with disbursement of estate assets.  Finally, it details the administration of the estate and defines how assets are to be distributed to beneficiaries.
At Hilliard Estate Planning, we find a good estate plan includes documentation that catalogues physical assets, including real estate deeds, life insurance policies, safe deposit boxes, and bank and investment accounts.  Details on where to find these items, any account numbers, and other relevant information
is important in avoiding future problems.
However, there is a new set of assets that are often overlooked when itemizing an individual’s estate.  These are called digital assets and can include websites, domain names, e-mail accounts, social media posts, photographs housed online, computer files, videos, blogs, online business and vendor accounts, and just about anything else electronically communicated or stored. 
These have real value, even if it’s only emotional worth to an individual.  These need to be documented as to location and how someone’s agent, executor or trustee can gain access to them after someone’s passing.
Federal and state laws vary as to how and by whom digital assets may be accessed.  Further, online companies complicate matters to protect themselves and the privacy of their clients, since users do not own where their data is stored, the software used to store it or the software used to transmit it.  You’re only licensing use of the format.
So, who’s in charge?  When someone dies, their digital assets may come under the purview of several areas of the law. The federal government legislation enacted in 1986 (three years before the Internet was even introduced) hasn’t been amended since to  keep pace with today’s digital technology, but the law still imposes criminal and civil penalties for unauthorized access to digital assets. Contract law comes into play since most people enter into contracts when they sign up for online accounts. Finally, probate law must be considered because most states have their own interpretations of how these assets can be handled by beneficiaries.
What to do?  Each service provider has different terms and conditions on usage, inheritability, and overall access and rights of the user.  Some companies, such as Shutterfly, simply eliminate an account, if the licensee dies. Some like Google and Facebook make some provisions for transfer of accounts; however, these need to be set up in advance.
With the exponential growth of the Internet and the corresponding growth in digital assets, the uncertain state of the law, and digital provider’s rigid adherence to their terms and conditions, it is more important than ever to inventory these assets, secure hard copies of what you want to save as part of your legacy, and detail to whom and how access is granted to your electronic files.
We can assist you to ensure your will, trusts, and a power-of-attorney include language to handle the access, control, and conveyance of your digital assets.
Call Terri Hilliard at 805-778-0111 or e-mail thilliard@terrihilliard.com.
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