Estate planning for managing digital assets is vital in today’s world. It is important to realize that your digital assets have value. You should manage digital assets just as you would put estate planning in place for traditional tangible assets, such as your home, vehicle, jewelry, coin collection, real estate etc.
Estate planning typically involves assigning legal authority to someone else, called a fiduciary. A fiduciary will manage your property and act in your best interests should you become incapacitated or die. The Uniform Fiduciary Access to Digital Assets Actwas passed to help establish the rules for digital assets in an estate.
What types of fiduciaries are there?
Types of fiduciaries include:
- Executors or administrators of estates when individuals die
- Conservators or court-appointed guardians of a protected person’s estate
- Individuals who are given powers of attorney
What Legal Documents Help Fiduciaries Manage Digital Assets?
Instructions provided in a will, a trust or in a power of attorney explain the individual’s wishes for distributing, managing or destroying digital assets, much in the same way as an individual’s personal tangible assets. If the legal document does not provide instructions, then the fiduciary will deal with the asset as deemed appropriate. For example, an executor could access the decedent’s email account for the purpose of inventorying estate assets and closing the account. Copyright law may limit the executor in regards to copying or distributing the digital files.
The American Bar Association (ABA) points out that the individual creating a trust or will (trustor or testator) typically provides instructions for digital assets to be destroyed or to have accounts terminated. When this is the case, the attorney would include an exculpation provision.
You can work closely with your estate planning lawyer to address your digital assets, determining which accounts you want your fiduciary to have access to and which accounts you want to delete or terminate. Perhaps you have pictures or other memorable items stored on the internet in a safe place and want to leave them for certain beneficiaries. If you’ve given other individuals access to your digital data, then you should name them in your will, trust or other estate planning documents as well.