When You Go Offline Permanently, What Happens to Your Digital Assets?

Just how of much of your life is stored online and how you need to estate plan for your digital assets

Tuesday, September 23, 2014 | 12:45 am

The digital transformation of our world now extends beyond life itself, says Alexandra Smyser, Estate Planning Expert and Associate Attorney at the Pasadena Law Offices of Donald P. Schweitzer, who urges her clients to include their digital assets in their estate planning.

“Your digital assets are such a huge part of your life right now,” Smyser points out, reeling off a laundry list of websites, which many of us constantly use (like Facebook, LinkedIn, Evernote and Twitter). Collectively, your thoughts and pictures and recordings on these platforms create an intimate digital record of who you are, far more nuanced and revealing than any diary could ever be. The issue, of course, is what happens to these assets after you die? Who can access the contents? And who owns the contents?

Issues go far beyond social media accounts and the likes of Instagram and YouTube. Digital formats have transformed the way we own actual property. Soon, nearly everything you own will have a digital component. Bitcoins are digital currency and as such are a digital asset with real value and utility. If you die, how can your heirs take possession of your Bitcoins?

Of course if you own a webcentric business – an online storefront, for example, or a blog which generates advertising income – the need to include these assets in your estate is obvious.

Symser says laws are evolving to keep up with this new frontier but much is still not set in stone. Some sites, like Google services and applications, are subject to the Terms of Use agreement set forth by the company giving the client account access in the first place and those rights may not be extended even to family members and heirs.

To counter these restrictions, Symser has developed strategies for her clients including specific estate planning authorizations. “I have been including in their documents a provision that their trustee is authorized to access their digital accounts and digital devices,” she says. “People need to start thinking about what they want to do with their digital assets and give instructions to their trustees or personal representatives.”

Along with the various Terms of Use Agreements in place, many states have their own laws regarding digital assets. Delaware has recently passed a law called “The Delaware Fiduciary Access to Digital Assets Act,” which says that an agent with the power of attorney or a trustee of a trust has a right to access, control or copy digital assets. “That law allows a personal representative or trustee to either gather those or, in many cases, people want them destroyed,” Smyser says.

Delaware is the eighth state in the country to enact a Digital Assets Act, and, the Delaware act is by far the most comprehensive. “As the years have passed the statutes are getting more and more expansive,” she said.

And of course, passwords must be made available to trustees and heirs or access to your accounts may prove impossible. The last thing one would want is for your grieving family to have to sit at your laptop, driven to despair trying to figure out passwords to get into your bank account record and email accounts.

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

Alexandra SmyserAlexandra 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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