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Good estate planning must include one’s online digital assets

The Chicago Tribune reports that family heirlooms and records certainly are not what they used to be. Increasingly, as we become a paperless society, Americans are putting everything online from family photo albums and music to financial statements and tax documents. Further, many peoples' social lives now revolve around various online social networking websites. At our deaths, our online presence will live on. The author of an article published by the Military Officers of America Association notes that, as more and more people are finally realizing, we will all experience a "digital death" leaving behind a "digital afterlife" in the form of online possessions and identities "which will essentially outlive us in The Cloud."

Many people still do not take digital assets into account when engaging in estate planning. This is unfortunate given the wide array of digital assets many of us possess. Digital assets can be broken down into three main categories: (1) personal assets; (2) social media assets and (3) online financial accounts and records. Personal assets would include blogs, commercial websites, family photograph albums and one's iTunes collection. Tumblr, Instagram, Facebook and Pinterest accounts would be examples of social media assets. Digital financial accounts could range from an online account with a traditional brick and mortar bank to an account with Capital One 360-a bank which exists only online. In essence, digital assets include any online account which a person owns or any electronic file stored on a server, computer or in The Cloud.

The American Bar Association advises that when digital assets have value, one may wish to consider disposing of them through either a will or by transferring ownership to a trust. Either a will or a trust can be drafted to pass your digital assets to your loved ones. Conversely, there may be social media accounts or email accounts that you desire to be deleted upon your death in order to protect your privacy. A will can leave specific instructions to your executor regarding which accounts are to be deleted.

Strategic planning

Once you have passed, your executor will need to know how to access your assets. In an article she wrote for the Illinois Bar Journal on planning for the administration of digital estates, Helen Gunnarsson noted that when conductor Leonard Bernstein died, his memoir Blue Ink was left behind in an electronic password protected draft. No one has yet cracked the password. If you have online banking or investment accounts, your executor will need to have access to your account information and this means having access to your passwords.

In order to avoid a nightmare scenario where your executor cannot locate either important financial assets and/or the passwords needed to access those accounts, the ABA offers some advice. The ABA suggests that those interested in digital estate planning make a list of all of their online accounts, passwords and security questions and answers. Since a will is a matter of public record, passwords should never be put in a will. Instead, the passwords can be placed in a separate document which would be stored in a safe place together with a will or, perhaps, a trust instrument.

Access to digital assets is an evolving concept in the law. Although it is not wise to put your passwords in the will, your will should give your executor clear authority to deal with your digital assets at your death. At the moment access to these digital assets is controlled by the terms of service that is buried away in each the fine print of each provider. They differ greatly whether your executor has the right to gain access to passwords, change the content of the sight or even delete the sight. Clear language in your will empowering your executor to take action increases the ability of the executor to take action.

These same considerations apply if you become disabled. Your power of attorney for property should have language giving your agent access to your digital accounts. Again, the providers may use their terms of service to deny access, authority that is clearly described in the power of attorney increases the ability of your agent to help you.

Seeking advice

Good estate planning will take into account whatever digital assets you may possess. If you have digital assets that you wish to pass on to another person upon your death, you should seek the advice of an Illinois attorney experienced in handling estate planning matters. The attorney can help you create an estate plan which will carry out your goals. Contact Leonard F. Berg, Attorney at Law, to review your estate planning needs.