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Opinion: Consider digital footprint in estate planning

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When planning for the distribution of your property to the next generation, a frequently overlooked but vitally important category to consider are your digital assets.

A digital asset is broadly defined as any electronic record that you own, manage or control. Many clients are surprised at how many digital assets they actually possess. Examples include online bank accounts or linked accounts (e.g., Venmo), social media pages, online photos, email accounts and airline or credit card rewards. In the last two decades, digital asset ownership has permeated the lives of nearly every human on the planet. The average individual has 25 passwords for digital accounts, and 85% of adults use the internet daily.

Digital asset values
Real financial value exists with regard to these assets. It is estimated that the average value of a family’s digital assets is $50,000. Consider that several parcels of virtual real estate in a video game were previously sold for $2.5 million, the domain name VacationRentals.com sold for a whopping $35 million, and the real dollar value of Bitcoin being traded today is estimated to be in the billions.

Also, one cannot overstate the irreplaceable sentimental value that certain digital assets have to the family and friends of a recently deceased loved one. Consider the emotional value of emails, photos and online journals a late family member had created. If those assets are password-protected, and no advance planning was done, all of those significant possessions will be lost forever.

Finally, planning for digital assets after death is important to prevent cybercriminals from hacking into your accounts, resulting in financial loss and identity theft. It is unfortunately all too common for professional computer scammers to target the identifying information of a recently deceased individual to access their financial accounts, bringing additional stress to family members.

It is important to realize how remarkably difficult accessing digital assets is to anyone other than the original user. State and federal anti-hacking laws make unauthorized access to personal computer systems a criminal act and strongly protect privacy to digital assets. In addition, limitations imposed by service providers cause headaches for anyone trying to recover such assets. Nearly all Terms of Service Agreements explicitly state the user’s account is nontransferable and will terminate upon death. And even if you have been given legal authorization to access another’s digital property (e.g., through an estate plan), you still need the individual’s username, password and security questions in order to gain access. Very rarely is this information readily available.

In response to these complications, in 2015, the Uniform Law Commission with representatives from each state introduced the Revised Uniform Fiduciary Access to Digital Assets Act. This law, which has now been enacted in Missouri and 41 other states, seeks to make access to the digital assets of a decedent easier for those who have been given proper authority. While current laws regarding digital assets are critically out of date, the act is a strong step toward modernizing this area of the law.

How should I plan?
While the technology behind digital assets can be complicated, the steps you can take to ensure your family members are able to access these assets after your death are quite simple.

Some digital asset providers offer online tools that allow the user to name a beneficiary to access, and take control of, the asset after death. Examples are Facebook’s Legacy Contact feature and Google’s Inactive Account Manager feature. These tools, when available, are the most effective way to plan for the post-mortem control of your digital assets and accounts.

It also is vital to ensure that your estate planning documents include explicit authorization for your fiduciary to access and control your digital assets following death. The language that should be included in these documents should be broad enough to cover all types of digital assets, including both the asset itself and the information stored in that asset. If no online tool exists, and you have failed to include any authorization in your estate plan, the Terms of Service Agreement will apply, almost assuredly prohibiting access to your online assets and accounts.

Finally, it is essential to maintain a current inventory of all digital assets you own, listing all usernames, passwords and security questions required to access such accounts. Ensure the individual you appoint to control such assets has access to this inventory after your death.

Everyone maintains some type of digital presence. These assets have real value, both financially and emotionally, which needs to be appropriately passed on to loved ones and protected from cybercriminals. Proper estate planning can guarantee that such information will not be lost forever in the ever-expanding digital void.

Andy Peebles is an estate planning and business attorney with the law firm of Carnahan, Evans, Cantwell & Brown PC. He can be reached at apeebles@cecb.com.

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