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have value, computer gamers can  accumulate funds within role playing games that have value in the real world and  an unpublished manuscript may be stored on a hard drive or a memory stick.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.

A variation of this piece first appeared in the Spring 2013 Client Newsletter  jointly issued by Woodman & Eaton,  P.C.  and Monument Financial  Advisors, LLC.

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.

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