Well, that’s a question our grandparents never had to deal with! Now that we live so much of life in the digital space, it’s important to consider our digital assets when making estate plans.
Legal Guidance About Digital Assets
The more devices and apps we use, the more digital assets we generate. What if someday, someone in your family wants that special video—the one which the only copy of is on a social media site? Family photos? Heirloom recipes? Alternatively, maybe you have digital assets you don’t want further distributed. What happens to them?
Advice on JD Supra observes that the legalities concerning our digital assets will continue to evolve, just as technology does. In New York, for example, a law was enacted in 2016 which “allows executors and other representatives to deal with someone’s digital assets upon death.” Before that, companies like Facebook and Google could refuse access to the accounts of a dead person based on Federal Privacy laws.
As you ponder your digital assets, a partner at the law firm Farrell Fritz, Patricia Marin offers this guidance:
Consider addressing the disclosure of your digital assets and the content of your electronic communications using a provider’s online tool, in your will, or revocable trust and in your power of attorney. In your estate planning documents you can provide your agent power to access control and/or delete your digital accounts and the contents thereof.
LegalZoom suggests that along with including a digital asset provision in your will and power of attorney, provide a document listing your accounts and login information.
Additionally, try to eliminate digital accounts you no longer use and update your preferences on those you do use— some service providers allow you to indicate your wishes upon death or disability.
Of Course You Do Need A Will!
Whether or not you are concerned about digital assets, you do need a will! Many people put off making a will. If you are one of them, perhaps 2021 is the year you set a goal to do so!
Keep in mind, In the event you die without a will or trust, your affairs will be settled in probate court, following state laws. In that case, the court will likely appoint an administrator to administer your estate, with the guidance of the court. Often, the court will require procurement of an administrator bond, before the affairs of the estate can begin to be settled.
An administrator bond is a type of fiduciary bond that protects the interests of the estate and its heirs in accordance with state law. When a judge requires an administrator bond, it must be secured and filed promptly.
Administrator bonds can easily be obtained from a leading, national provider: Colonial Surety Company. Uniquely, Colonial offers direct, digital, administrator bonds. Sometimes these bonds are referred to as executor, estate, fiduciary, personal representative or probate bonds. Colonial provides all of them. Just get a quote online, fill out your information, and enter your payment method. Print or e-file the bond right from your home or office—even while at court. It’s that simple.
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What’s a Digital Fiduciary?
The person you designate to oversee your digital assets when you die can be referred to as a digital executor in a will. A Power of Attorney (POA) might refer to this person as an agent. LegalZoom notes that digital fiduciary covers both of these terms, and further explains:
There is currently no federal law governing the designation or duties of a digital fiduciary. However, with the current focus on information gathering and sharing by email and social media companies, this may change.
As of the beginning of 2019, approximately 30 states have enacted laws dealing with this subject. Most of these have adopted the Uniform Fiduciary Access to Digital Assets Act. A few states have created their own laws, and it is likely that others will enact some similar type of law in the future.
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