Digital Estate Planning
by Brian Boys
September 23, 2011
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Many people read articles discussing the importance of protecting and safekeeping passwords, and recognize that if they are not careful, their online accounts and other activities may be compromised, leading to disastrous results. It is also possible, however, that you may protect these same passwords so well that in a period of incapacity or upon your death, your agent or executor will not have access to your online accounts.
Digital estate planning is a relatively new concept in traditional estate planning that takes online activity into account when designing your plan. Digital estate planning not only tries to ensure that your agent or executor has access to your online accounts, but it also takes into account the plethora of other electronic assets that the average American now has.
To illustrate the importance of completing digital estate planning, I’ll use the example of Scott, a 40 year old single man who, like many people, has a large online presence. Scott does all of his banking online and never receives a bank statement in the mail. He has an investment account at a company that does not have a brick-and-mortar location. Scott pays his bills electronically, without receiving a hardcopy bill, and he pays some of his bills automatically on a monthly basis. He has several e-mail accounts and maintains his own website and blog. Scott buys and sells items online through Amazon and eBay, using his PayPal account to complete the transactions. He has an extensive photo and music collection that he stores online, and he is an active Facebook and Twitter user. Finally, because Scott prefers to not have papers lying around his house, he stores copies of all of his medical, financial, tax, and legal documents on a “cloud” server.
Now imagine that Scott becomes incapacitated or dies. How would Scott’s agent or executor begin to handle his affairs? How would this agent or executor have any idea of the true extent of his or her responsibilities? Digital estate planning attempts to prevent these problems from occurring.
One of the first things that digital estate planning involves is taking inventory of your online presence. In addition those mentioned for Scott, other examples of your online presence (also referred to as “digital assets” or “electronic assets”) include:
- Website domain name ownership;
- Music playlists;
- Online videos, stored on sites like YouTube; and
- Online magazine, newspaper, and website subscriptions.
After taking an inventory, the next step is ensuring that your agent or executor is aware of and is able to handle each of the items. Oast & Hook’s clients receive a document entitled “Letter of Instructions” as part of their estate plan. The Letter of Instructions, or another similar document, is an excellent place to convey all information that an agent or executor would need, including logins and passwords. Your Letter of Instructions or similar document should be stored along with your other estate planning documents in a safe place to prevent a wrongdoer from accessing your digital assets. You should also consider storing this information on a CD or flash drive that can be kept with your estate planning documents. Your agent or executor will likely need access to your personal computer, tablet, and/or smart phone, so make sure that you provide instructions for how to access these devices.
You may also want to include language in your power of attorney or will that allows your agent or executor to handle your digital assets. It is important to note though that each online provider typically has a service agreement that may limit the ability of another individual (such as your agent or executor) to access your online information. Some service agreements may actually state that you do not in fact own your electronic assets.
There is not much established law in the field of digital estate planning, but in the coming years, we will surely see this area of law evolve. Although Virginia has not done so, other states have begun to address the issues involved with digital estate planning by passing laws that provide executors with access to digital assets, and authorizing an executor to take control of a deceased individual’s online presence. As we all move towards a more digital world, the importance of digital estate planning will only grow.
The lawyers of Oast & Hook are available to help you with your traditional estate planning and your digital estate planning. The attorneys at Oast & Hook can also assist clients with their estate, financial, insurance, long-term care, veterans’ benefits, and special needs planning issues.
Brian Boys is an elder law attorney with Oast & Hook, and he practices in the areas of estate planning, estate and trust administration, special needs planning, guardianships and conservatorships, and litigation. Mr. Boys also works with personal injury attorneys and their clients to provide consultation on issues ranging from estate planning, maintaining public benefits, and the need for a guardian or conservator.
O&H: Allie, we’ve heard about the adventures of a cat who was found far away from her home. Please tell us about her.
Allie: Sure! Willow is a calico cat who arrived at Animal Care and Control of New York City last week. The person who brought her in said she was found on a block of East 20th Street. The shelter scanned Willow and found a microchip, which led to her address in Colorado and her identity. Willow was not from New York City, but from Boulder, Colorado, 1800 miles away. Her family in Colorado said she escaped from their home five years ago. A recent New York Timesarticle poses several theories for Willow’s journey from Colorado, ranging from traveling on foot to hitching a ride on a train or in a car. The most likely sequence of events is that a person found Willow in Colorado and moved to New York City with her. Another newspaper report has given more support to that theory. In any event, Willow’s family is happy that she has been found, and after a brief stay at the shelter and with a foster family to be sure she is safe to travel again, she will be headed home. What an interesting adventure − I’d like to meet Willow so she can tell me what really happened! All this talk of travel has made me ready for my morning nap . . . See you next week!
Oast & Hook is proud to announce that it has partnered with TowneBank to offer a series of seminars for seniors and their families. Each seminar will cover issues facing our seniors such as reverse mortgages, planning for retirement, elder law, Medicare, and long-term care planning. The seminars will begin at 10:00 a.m. and will end at noon. Below is the date and location of the final seminar. Seating is limited. If you have any questions or would like to register for this seminar, then please phone Carol Hernandez at 757-638-6797.
September 30, 2011
TowneBank, Great Bridge Community Hall
137 Mount Pleasant Road
Chesapeake, Virginia 23322
If you are interested in having an Oast & Hook attorney speak at your event, phone Darcee Hale at 757-399-7506. Past topics include estate planning, long-term care planning and veterans benefits.
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