Estate Planning and Digital Assets: Keeping Up with the Changing Times

So much of your life exists in the digital world. When you consider your daily online activities, plus the platforms, management tools, and devices you routinely use, digital impacts your life significantly. It’s likely you use many, if not most of the following: email, Facebook, Twitter, Google Calendar, Amazon, Netflix, online photo and music storage, apps for ordering prescriptions, online management of financial accounts, smart phones, and tablets, to name a few. All of your data housed digitally falls under the umbrella term, “Digital Assets.” Digital Assets encompass all the content or electronic information stored on a computer or storage device, but not the hardware. Many people no longer receive paper statements—much of their personal and professional activities are conducted in the digital realm.

So, how does all this digital activity impact your estate planning? Who is able to access the information contained in your accounts during your life, or upon your death? Are there laws, or policies of each company controlling access to the information? Legally, does another person have the right to even access the account or service? What if a person, alive or deceased, does not want a representative to access their accounts or information under any circumstances? How do you store your usernames/passwords safely in case access is needed to your digital assets?

Indiana is one of the states that has adopted the Revised Uniform Fiduciary Access to Digital Assets Act that was effective July 1, 2016. These laws, and other laws adopted or updated, allow attorney-in-facts (power of attorney), trustees, deceased’s personal representative, and guardians to access and manage digital assets for the people they have authority to act on their behalf. It is important to include language in your power of attorneys and estate planning to allow your named representative to have access to your digital assets. This law also allows an individual to use an online tool to direct the service to disclose, or not to disclose, some or all of the digital assets to a designated representative. If a person designates in their power of attorney, or in their Last Will and Testament that contradicts the online choice, the online tool must be followed. The individual instructions of a person will override the service (Google or Facebook) default terms of service. If no online tool used, or no designation is in a person’s estate planning documents, then the default terms of each differing provider’s service will control.

In today’s digital world, it is important to plan for these issues to make sure your trusted representatives will not struggle to access your digital life, such as to allow legal access to digital assets along with the ability and information needed to access (services with usernames/passwords), in the event of your incapacity or death.