'How To' Estate Planning for Digital Assets
By Brenda A. Schlais, Estate and Wealth Planning Attorney at Angermeier & Rogers, LLP
A woman, whose husband had recently passed away, did not have their password for their investment accounts. She had always paid the bills, and he had managed their investments during their marriage. He had not written down the password where she could find it. She had mounting bills to pay and could not move funds from their investment account to their checking account.
A family’s mother was placed into a nursing home due to quickly advancing dementia. Her children tried to get onto her smart phone, wanting to download photos she had taken of herself and her grandchildren. They did not have her password, and she no longer remembered it. They were distraught, having hoped to cover the walls in her room with photos of people she loved, trying to keep her tied to her family a little longer.
Stories such as these prompted our law firm to start including references to online accounts, digital property and digital devices in our estate planning documents. If either family had had this language in their loved one’s documents, they could have gotten the passwords they needed in a timely manner. Instead, they had to provide the companies with numerous documents over a long period of time, trying to prove their right to access the accounts and devices.
Do your documents include references to digital assets?
If you become incapacitated or upon your death, could your loved ones access your digital information at a time when they are working through the loss of their family member? Is this language in your financial power of attorney and in your trust, if you have one?
Another purpose of including this language is to allow your agent, under a financial power of attorney, or a trustee, under a revocable living trust, to access your social media accounts and email, to gain control of online video channels or gaming avatars, of musical compositions, theatrical work, literary content, or blog content. Living our lives online leads us to own more assets electronically and to store more data on other servers or in the cloud. It is important to treat these electronic assets with as much thought and care as we would the family’s antique furniture, jewelry or artwork.
There are several ways digital assets are protected.
Passwords, data privacy laws and encryption can make it nearly impossible for anyone except the original owner to access accounts without proper passwords. Criminal laws are still evolving to match our society’s reliance upon digital assets. They protect ownership but leave little room for families trying to help loved ones.
Make a List
One way to make things easier for your agent or trustee is to write down a list of your digital assets – banking accounts, investment accounts, tax information stored with your CPA, online shopping accounts, photo and video storage – and write down your password for each. There are also password management services that one can purchase. For a reasonable fee, they store all of your passwords and you just have to remember one password to access that account. You can share that one password with your fiduciaries, or folks who will be stepping in to act on your behalf, making things easier and quicker for them. This can also make life easier for yourself!
Make a Backup
Also, back up digital photos and videos stored on the cloud onto your computer, or a local storage device, from time to time. We generally turn to the cloud to store large amounts of data, but storage devices can make it easier for families to access this type of asset. Consider downloading, as well as uploading, data. In many families, videos and photos are often more valued than financial assets.
Laws and techniques change over time and you want to be sure your documents are up to managing all of your assets, even your electronic ones. So check in with your estate planning attorney from time to time, to be sure your planning documents address all the ways and means we have of living our lives online.