Managing Digital Assets In Your Estate Plan

Estate planning used to be a lot simpler than it is today. You told your lawyer who you wanted to get your house, car, and bank account, and they did the rest. Now, unfortunately, the internet age has brought another more complicated element into the picture: digital assets. This article explains:

• What digital assets are and why they need to be included in your estate plan.
• How a digital trustee can help manage digital assets after you die.
• How to access digital assets after someone’s death when they have not been provided for in an estate plan.

What Are Digital Assets?

Digital assets are anything you own or create whose physical existence extends only as far as a few blips of electricity in server rooms somewhere. For example, anything stored on the cloud, such as photos or music, that great American novel you never quite finished, and even your social media accounts or websites can qualify.

If you have a blog, if you have an Instagram account that you are profiting off of, even your online side hustle can be considered a digital asset. If you are a reseller on eBay or you have an Etsy account on the side, all of those can be considered digital assets because those materials are digitized and online.

Why Is It Important To Outline Digital Assets In A Trust Or Supporting Trust Document?

There are two key reasons to consider including your digital assets in your trust:

Authority To Manage Assets

• Ensuring the authority to manage these assets is given to someone you trust is crucial. If you pass away or become incapacitated, the person you chose can manage your digital assets without needing a court order to access them.

Awareness Of Assets

• You want your trustee to know what digital assets exist and where to find them. While a trustee could attempt a Google search, if an asset is under another name or hard to locate, they might never find it. It is much easier for your trustee to manage everything if they know which accounts you have from the start.

The first reason is perhaps even more important than the second. In California, the California Revised Uniform Fiduciary Access to Digital Assets Act allows your trustee to gain authority over digital assets. By ensuring you meet its requirements when including digital assets in a trust or trust-supporting documents, your trustee will be able to access them.

The statute gives your trustee, provided everything is properly set up, the means to compel the custodian of any digital assets to comply with their access request. If the custodian does not honor the request, the trustee has the legal recourse to enforce it.

Attorney Rebecca Sommer is a California estate planning lawyer based in Anaheim whose work covers every estate planning niche from the classic to the ultra-modern.

Her experience helping Californians prepare for the worst, including handling their digital assets, makes her an ideal source for estate planning tips and tricks.

Do you have digital assets that are valuable or important to you? Contact The Law Office of Rebecca Sommer today.

Call For A Free Assessment Of Your Needs - (657) 571-1241

What Is A Digital Trustee? What Is Their Role In Managing Digital Assets?

Within your estate plan, you can specifically designate and name a digital trustee. This individual will be in charge of managing one or more of your digital assets and does not need to be the same person as your regular trustee.

If you have someone who is particularly good with technology or a partner involved in a blog or other online venture, you may want them to manage those assets.

For many people, digital assets are largely sentimental accounts that need to be shut down, as they do not generate much revenue. For others, there may be an interest in continuing to run and/or profit from those digital assets or selling them to benefit your loved ones.

In either case, you need to ensure that the ordinary or digital trustee has the power to manage those digital assets. Once your trustee has those powers, they can use that authority with whoever controls your digital assets to gain the full or partial access required to fulfill their obligations.

Why Do I Need To Include My Social Media Accounts In My Estate Plan If They Are Not Valuable?

Many people, understandably, think that since their social media accounts are not valuable, they do not need to include them in their estate plans. Even if you are not an influencer and do not have digital assets that produce revenue, you still want to ensure that your trustee has the ability to close them.

Unless you want to keep your digital assets on the web indefinitely, it’s important to have someone who can close those accounts. This also helps prevent hackers from eventually finding and using them maliciously, such as to seize social security numbers.

If you do not include your digital assets in your estate plan, it can be quite difficult for your trustee or loved ones to gain access to them.

Without An Estate Plan In Place, How Do You Access Someone’s Digital Assets After Death?

When access to digital assets is not included in someone’s estate plan, their loved ones may face difficulties in using or closing those accounts. This leaves them with two options: the right way and the way people often resort to.

✅ The Right Way

• To gain access to digital assets properly, you need to obtain a court order. This involves going to court, getting authorization, and acquiring the legal authority to access those assets.

❌ The Common, Risky Way

• Unfortunately, many people attempt to gain access by using any available passwords, such as those saved in a password manager or written on a Post-it note stuck to a computer monitor. This method is not only incorrect but also risky. There are numerous laws protecting people’s online materials, and unauthorized access can lead to serious legal consequences. Federal protections may still apply even after someone has passed away, and you could face felony charges for unauthorized access.

Therefore, it is crucial to ensure that you have express permission and authorization for accessing digital assets. The only way to guarantee that your loved ones have this express permission and authority is by including your digital assets in your estate plan. Without this, your loved ones will be left trying to obtain a court order.

How Can An Estate Planning Attorney Assist Me With My Digital Assets?

An attorney can assist you with your digital assets in two key ways:

1. Proper Authorizations: Ensuring that your chosen trustee has the proper authorizations to manage your digital assets effectively.
2. Practical Guidance: Providing you with a template letter of instruction. This guideline helps you capture the location of your digital assets, along with the usernames and passwords needed to access them. This information, combined with the legal documents an attorney can help you prepare, allows someone to access everything legally without needing to obtain a court order.

For more information on Managing Digital Assets In Your Estate Plan, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (657) 571-1241 today.