We are getting old — especially Bill. Planning for how our assets will be handled after we pass on has suddenly become very important.
We own a bunch of gadgets and other electronic stuff. OK, so most of it is — or will soon become — obsolete electronic recycling fodder. But we both have some valuable digital stuff, and we bet that most of you do too. A competent estate plan, in this day and age, must include the preservation and transfer of digital assets as essential components.
Now, you may ask: “What are the digital assets you are talking about?” Those assets include all electronic information and records that you own or possess, such as digital photos, stored films and movies, e-books, all information in cloud accounts, social media accounts, digital subscriptions, online access to financial assets, websites, trademarks, personal information stored electronically, cryptocurrency, nonfungible tokens (NFTs), online access to bank and investment accounts, credit card rewards, email accounts and so forth.
The Digital Legacy Association is an excellent resource for guidance in these matters. It defines digital legacy as the following: “the digital information that is available about someone following their death. Someone’s digital legacy is often formed by information that they leave online. This may include any website or blog listings about the person, their social media profiles, photos, videos, gaming profiles and interactions they have had online.”
“A competent estate plan, in this day and age, must include the preservation and transfer of digital assets as essential components.”
It defines digital assets as follows: “possessions that are purchased, stored or available on digital devices or online services. These may include photos, videos, music, websites, blogs and eBooks.”
How do you properly plan for the preservation and transfer of these assets? First, you prepare a will, but the will cannot be the type we traditionally think of. It must contain specific provisions and directives on how to deal with your digital assets and digital legacy. (A good place to start is the Revised Uniform Fiduciary Access to Digital Assets Act [RUFADDA].) That means having a clause that addresses the issue of digital assets. It should specifically address a fiduciary’s access to digital assets, electronic communications and online accounts. Your financial power of attorney should address the same issues.
But that is not enough. You need to discuss these assets with your loved ones. You need to prepare an inventory of all your digital assets and accounts, which includes passwords, hardware, subscriptions, etc. Put that information in a safe deposit box or other safe, secure place. To make the process easier after you’re gone, make sure you have implemented a password manager and provided information on how to access your cellphone (which will come in handy on two-factor authentication). This all needs to be accomplished in accordance with the provisions of RUFADDA.
It is a good idea to consult with a “techie” or someone who is knowledgeable about this stuff. For example, do you want your Facebook page to survive you? Do you want to leave your Instagram photos posted? Make your wishes clear.
At a minimum, you need to have all your digital assets locked down and secure to prevent the risk of identity theft. You can put your wishes in your will or in a separate document left for those who will be handling your matters. If handling this is over the head of your executor, give your executor guidance on who to turn to for advice in these technical, digital matters.
There are many complicated issues in this area. Just make sure have fully considered and provided for your digital assets and your digital legacy before it is too late. We hope we did not bum you out with this article. But as our world continues to digitize, we feel addressing these matters is really important.