Today we’re featuring an article written by our Guest Writer Attorney Neil Cohen:
Have you planned for your digital assets? How can you when you are not even sure what they are or if you have any? Digital assets is a relatively new term used to describe a long list of items related to cyberspace and computing and includes such things as computer hard drives, data storage devices, electronically stored information, user accounts and domain names.
Planning for your digital assets helps your family preserve assets that may have significant monetary value: domain names have been sold for hundreds of thousands of dollars, personal websites and blogs may have value, computer gamers can accumulate funds within role playing games that have value in the real world and an unpublished manuscript may be stored on a hard drive or a memory stick. Other digital assets like email accounts and photo storage accounts may not have monetary value but the information stored within these accounts could be precious to your surviving family members.
Can someone step into your shoes if you have not planned for your digital assets and are unable to access your accounts? The reasonable answer is yes; if that person can locate your passwords he or she could access your accounts just as you could. The legal answer differs; under the Electronic Communications Privacy Act of 1986, the Computer Fraud and Abuse Act of 1986 and other applicable federal and state data privacy laws, the answer is most likely no. Such access may also violate the account provider’s terms of service or could be interpreted as identity theft. If your provider learns you are no longer living, they most likely will immediately restrict access to your account to avoid facing possible sanctions.
Planning for your digital assets starts with the naming of a fiduciary to access your digital assets. In fact, consider naming an attorney-in-fact under your Durable Power of Attorney, an executor under your Will and a trustee under your Revocable Trust. Those documents should also all contain some specific provisions empowering your fiduciary to act with regard to digital assets.
Some attorneys have begun incorporating specific provisions into these planning documents that are designed to allow fiduciaries access to digital assets. As the laws mentioned above have yet to be fully interpreted and are still evolving, many have yet to take action and those that have are continuously refining the language in their documents. In addition, your attorney firm should also work with you to store and secure your online identity and be a repository for access codes, passwords, pins and secret information such as first car or mother’s maiden name. As we all know, many of these items change regularly so it is important to update records on a regular basis. After all, no one wants their personal or business information lost in cyberspace.
Like almost everything else these days, planning ahead is a key component to avoiding headaches and surprises down the road. That definitely holds true for your digital assets.
Woodman & Eaton, P.C. is an independent law firm providing personalized, objective advice and counsel to individuals and families, with a stated goal to help their clients achieve peace of mind that they have developed a plan to accomplish their objectives. Monument Financial Advisors, LLC is an independent wealth management firm providing personalized, objective advice and counsel to individuals and families.