How Can My Estate Plan Include Digital Assets as well as Tangible Assets?

Sat, Dec 19, 2015


3346379213_1c99cc1617_bToday’s modern technology has created new things to consider for wills. An example of this is digital assets.

We all know, or thought we did, what assets are. Property, money, heirlooms, stocks, bonds, jewelry, etc. When someone dies, this is what is divided up. It is tangible for the most part. Now there are digital assets. However, what is a digital asset? For some, it could simply mean digitized files or photos in the cloud. Maybe it’s just something that doesn’t exist in paper form anymore. Maybe it is just mom’s scrapbook. Alternatively, maybe it could be someone’s email or social media accounts.

On the other hand, a digital asset could be someone’s entire career—in the form of digital movies, books, photos, or art. Perhaps they created everything digitally in a way that they can’t leave one son the rights to this movie or one son the rights to this book. The rights to movies and books are something that has been accounted for since the age of paper or video. However, usually there was something tangible somewhere, with digital assets there sometimes isn’t. The age of self-publishing may have completely made those prior arrangements for rights to books a total nightmare.

An example of an unusual digital asset could be metadata. Metadata can be somewhat nebulous, but usually exists in a particular form related to the industry the person is involved in. This metadata stores the info about a product or item and is used to keep track of the product or item in warehousing, distribution, or perhaps download-related sites.

You could leave the metadata to one son and the files to another. On the other hand, perhaps someone gets all these items for a particular product, whereas someone else gets all of that for another product. It would be important to contact all the relevant attorneys in the case of important digital assets to be sure that they are divided easily, correctly, and in ways that make sense for everyone. The attorney would also need to be sure that these have been distributed properly in relation to any contract law that might become involved. This is because sometimes the rights for something don’t belong to the person giving them. It would be wise to be sure that the digital assets you receive were able to be given to you; or that you even own them yet, because of a waiting period before they revert to you. Hopefully, the person who made the arrangements did this research for you.

The cloud, social media accounts, and digital storage systems have made it challenging to decide who owns those things once someone dies. If this were of particular concern for sentimental items or the casual user, it would be important to discuss with your probate attorney. Perhaps you would give access to all those things to the executor of the estate. Or perhaps you would divvy it up to different people depending on what you have stored in different places. Divvying up the assets could be done via email, disk, flash drive, or new cloud accounts. Moreover, of course, when it comes to accounts with certain providers you would need to follow the rules they set forth. Perhaps the social media account isn’t supposed to be accessed by anyone but the individual no matter what. This is a burgeoning issue in the field of probate, so it could be ever changing.

And of course, let’s consider the idea that some people don’t want others to have access to their accounts and might find a way to prevent it via estate planning.

Florida is working on this type of legislation. It will help those who find themselves in a situation where they need access to online accounts for whatever reason and don’t have access via passwords. Of course, if passwords are lying around they could be used…but should they truly be? In addition, who has the authority to do so?

The Uniform Fiduciary Access to Digital Assets Act or UFADDA addresses some of these concerns, as discussed in this article. It sets forth ideas and rules for online access of accounts. Not every state has adopted these ideas, but Florida is working on doing so. All of these unknowns make it a good idea for people to consider their online accounts and assets when creating an estate plan.

Attorney Christopher D. Smith, Sr. is designated a Board Certified Consumer Bankruptcy Lawyer by the American Board of Certification.  SmithLaw is located in Lakewood Ranch, Florida.  Attorney Smith concentrates on bankruptcy, civil litigation, probate, estate planning, and elder exploitation cases in the Sarasota and Bradenton area.  Call 941-202-2222 to learn more.  SmithLaw offers free consultations in certain areas, including consumer bankruptcy, probate, and personal injury matters.

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