Five Ways to Handle Digital Estate Planning

Five Ways to Handle Digital Estate Planning

Five Ways to Handle Digital Estate Planning

Click here to view original web page at Five Ways to Handle Digital Estate Planning

Skeleton standing with a smartphone in his hand

So much of our lives is online these days, but surprisingly few of us plan for what happens to our online accounts and assets when we are no longer around. Some of your Instagram followers may never notice that you’ve stopped posting vacation pictures, or stop to wonder why. But you have other online presences that can, and should be managed after your death, so that your loved ones can access assets and memories you’ve stored online. Here are five ways to manage your digital estate planning

Consider a Password Manager

Someone inheriting your house or car would need to inherit the keys as well. Someone inheriting access to your digital life will need your passwords. A password manager can make those digital “keys” easier to pass along. Services like 1Password allow you to store all your passwords for various sites with them so you don’t have to remember them. When you sign up for the service, you create an “emergency kit.”

The kit has, all in one place, the information that a person you choose would need to access your 1Password account. You may also store passwords for credit card sites, banking, and other information needed to access your financial accounts. Download a copy of your emergency kit to a USB drive or print out a copy and keep it in a secure place, perhaps in a safe with your estate planning documents, so that your personal representative can get to it soon after your death.

Other highly-recommended password managers to consider include Dashlane and Keeper.

Give Google a Heads Up

Google has a feature called “Inactive Account Manager.” If your account is inactive for a set period of time, the IAM hands over the reins to your account to a person you have designated.

The default period of inactivity is three months, but you can opt for a shorter or longer time before Google turns over control of your account. You will need to supply your phone number, if you haven’t already done so, as well as provide another contact email. If your account is inactive, Google will first try to reach you using these means before handing off your account to your designated person.

When you designate someone to manage your inactive Google account, you can select which Google services (like YouTube) you want them to be able to access, or grant blanket access to everything. You can also set up your account to send an autoreply to anyone who emails you after your account is declared inactive. Head to Google’s Inactive Account Manager page to begin.

Leave a Legacy on Facebook

If you’re like many people, you have either reconnected with long-lost neighbors, friends and family on Facebook, or you never lost touch with them in the first place because Facebook has always been a part of your life. Think about how much of your contact with other people, especially those far away, is on Facebook. You share everything from pictures of lunch at that new Ethiopian restaurant to news about the birth of a child or grandchild. Facebook is your journal, photo album, and coffee klatsch all in one.

Facebook also does things like suggest you as a friend to people you may know, and remind Facebook friends of your birthday. These things can be painful for your loved ones when you’re no longer alive to celebrate. This and other problems can be solved by designating a legacy contact.

Your designated legacy contact, who must be an existing Facebook friend, can memorialize your account after your death, leaving a slimmed-down profile online.

Your designated legacy contact, who must be an existing Facebook friend, can memorialize your account after your death, leaving a slimmed-down profile online. When an account is memorialized, the word “Remembering” will be shown on your profile next to your name. Your account will also be removed from public search accounts, you won’t be suggested as a friend, and reminders will not go out on your birthday. However, if privacy settings allow, friends can still post messages on your timeline, so your loved ones will know you are fondly remembered.

If you prefer, you can have your account deactivated after your death by selecting “request account deletion” under the “manage account” tab.

Help Your Loved Ones Do the Two-Step

If you have designated loved ones to manage your online accounts after your death, congratulations. You have made their lives a little easier by relieving the stress of having to figure out access to your digital life. Grief is hard enough without that frustration.

If you are wise enough to have done this, however, you were also probably savvy enough to set up two-factor authentication for many of your important accounts. If that’s the case, you will want to give the person managing your online life after your death access to your phone or other means of contact so they can get the needed code for the two-factor authentication. Otherwise, they are sure to be frustrated.

As a Back-Up, Back it Up

The steps above will take care of much of the management of your digital life, but it’s always advisable to save important work, photos, and files to an external hard drive that loved ones can have right at their fingertips.

We hope you won’t need these tips for many years (by which time we may well have new ones). But you will sleep a little better at night knowing you have done your digital estate planning as well as estate planning in real life.

If you have more questions about digital estate planning, we invite you to contact our law firm.

You may also be interested in:

Estate Planning for Your Digital Assets: Smart Planning for Your Digital Demise

Estate Planning for Your Digital Assets: Smart Planning for Your Digital Demise

Estate Planning for Your Digital Assets: Smart Planning for Your Digital Demise

Click here to view original web page at Estate Planning for Your Digital Assets: Smart Planning for Your Digital Demise

[NOTE: I wrote the first version of this article in 2010. The article was one of the earliest practical articles on digital estate planning and, in its own way, was influential. It is also one of many of my articles that can no longer be found on the web because of publisher website issues. As part of my effort to combat that sad state of affairs, I’m trying to update and repost some of those articles on this blog. I call that effort #blogfirst. In this case, I recently updated it for use in CLE materials for my upcoming presentation on digital estate planning at the 59th Annual ICLE Probate & Estate Planning Institute in Michigan and decided to post in now. I’m quite fond of this article and many people have found it helpful. I hope you will too.]

Andy Olmsted was a rare individual, in no small part because he is one of the few who thought carefully about what would happen to his online presence when they die. A popular blogger, Olmsted wrote a post before he left for service in Iraq along with instructions for his survivors to post it to his blog in the event he was killed in action. Unfortunately, it had to be posted. I read the post on the day it appeared in 2008, and I re-read it when I prepared to write this article. It remains for me one of the most moving posts in the history of blogging (http://obsidianwings.blogs.com/obsidian_wings/2008/01/andy-olmsted.html).

The beautiful thing is that his family has kept that post available on the Internet to this day. The sad thing is that this permanence is becoming an all-to-rare exception.

We are gradually, and grudgingly, learning that our online presence can outlive our physical presence and possibly even take on a life of its own. As we begin to move more of our activities – financial, social, work, leisure, creative – onto the Internet, the questions about what happens to our online presence and how we best prepare to handle that have begun to grow in quantity and complexity.

As the Internet started to become popular, we realized that a person’s Internet presence could raise a few important issues in the event of death or incapacity. For, example, what would happen to an email account? Who could access emails? Were there online financial or other accounts?

In earlier days, our online presence was just a small part of our “digital estate.” We leave a wealth of information on our computers. Our “digital estates” have begun to raise a number of complex issues and have revealed new digital questions and new digital assets, such as cryptocurrencies.

At the root of many of these issues we find the question of passwords. In simplest terms, how can you get on to someone’s computer to do anything if you don’t have passwords?

Once you logged into computer, you might well confront a different set of passwords for email and other online accounts. In a relatively small number of cases a few years ago, someone might have a website or other Internet vehicles, like listservs or discussion groups. Issues might include deciding whether and how to notify audience and friends of a death, tracking down financial accounts, and determining how to shut down a website.

As difficult as those issues could be a few years ago, they can seem simple and trivial in comparison to the myriad of issues we see today, especially in the online world.

Examples include:

• Multiple computers, flash drives, external hard drives, iPods, smartphones, tablet devices.

• Facebook accounts, Twitter accounts, email accounts, online backup accounts, document sharing and collaboration accounts.

• Photos on Flickr, documents in Google Docs, videos on YouTube, social media and blog posts, comments and other data.

• Online bank and investment accounts, payment information, rewards accounts, airline, hotel and other accounts, online medical information, subscriptions of all kinds.

• A myriad of online shopping accounts that might hold credit card information, rewards, benefits, subscriptions and memberships, and many “web 2.0” services.

• Cryptocurrencies, blockchains, and new types of digital property.

It’s difficult to know where our survivors would start, other than that they would have the sense of being overwhelmed. Planning for digital assets is becoming part of good estate planning and succession planning.

Basic Planning Concepts.

Conceptually, the same principles apply to planning for our digital assets after our demise as do to our real-world assets. Yet, handling digital assets can quickly get quite complicated. Most of us keep important papers, necessary information, and valuable assets in safe places. These places are usually revealed to a few trusted people who we hope also survive us. On occasion, however, family members will be surprised to find unknown accounts, collections or even boxes or cash. However, it usually takes a simple conversation, a page or two of notes, and pointing loved ones to the file cabinet or box where the important stuff is kept to handle 90% of the issues. There are also a number of inexpensive notebooks available these days where you can collect, record, and preserve in one place all your account numbers, password

The same principles apply in the digital world as do in the real world, but making arrangements for digital assets can be an order of magnitude more difficult than making arrangements in the real world.

Take a moment to do a simple exercise. Can you quickly and easily find all the valuable documents and files on your computers? Or, as is likely, are they scattered among many folders, several computers, flash drives and backup CDs, DVDs, tapes, iTunes, and a number of online accounts and services? How easy will it be for someone to sit down at your computer and find everything they need, especially if it’s now a struggle for you (the only one who will actually understand your system of organization) to do that?

Add to that the simple fact that establishing a succession plan works against every recommendation for good security practices. Security experts want to you create strong passwords, use different ones for different accounts, and to change them frequently. How many times have you heard or read that you should never ever write down passwords and keep them in a place that a burglar or other bad actor can find easily?

Think about it. If you do a great job on security, you all but guarantee no one can get easy and timely access to your digital world when the time comes.

Here’s another thought experiment: what if you use a thumbprint scanner or other biometric device for access to your computer? What happens when you die? Enhanced security techniques like multi-factor authentication (you need a password and a security key fob or smartphone) will make access even harder than it is now. Also, many experts recommend using a password management program that generates random, strong, lengthy passwords automatically.

In addition, it is not a great idea for security reasons to create directories, folders or documents on your computer that are named “Passwords,” “Important Financial Stuff,” or “Account Information” in case someone breaks into your computer system or steals your computer.

Although you will occasionally read articles suggesting that you cover your digital assets explicitly in your will or trust or even create a unique document to cover your digital assets, the fact is that most of us do not get around to doing that. Our digital world and our digital assets change on a regular basis. Almost by definition, any document that we create will be out of date when the time comes to use it.

A Simple Five-step Plan to Manage Your Digital Estate.

While I doubt that any of us will be able to put together a foolproof and perfect plan for our digital assets and affairs, the fact is that most of leave our real-world assets and affairs in less than perfect order. However, we at least try to make things easier for our survivors who have to handle our real-world estate. The best we can do is to put things in order as well as we can, pick the right people to handle them, and leave reasonably clear instructions. I suggest that we want to try to do the same things for our digital estates.

Toward that end, I want to recommend a very simple five-step plan that you can start on today and then revisit from time to time. In most cases, these steps have real world analogies and I encourage you to think in those terms. Build on what you know.

Step 1. Inventory Your Digital Assets. I spent a large part of my early legal career as an estate planning lawyer. In the case of either death or incapacity, the first important step is to track down and identify all of the assets, liabilities and other concerns that must be addressed. Once an inventory is created, you can move forward with marshaling and collecting assets, identifying outstanding liabilities and paying them in a timely fashion, and dealing with outstanding issues, such as turning off utilities, canceling credit cards, arranging for storage or disposal, and the like.

In the real world, your family and your designated successors (personal representative of your estate, trustee of your trust, or attorney-in-fact under a durable power of attorney) will be aided immensely by any list of assets and liabilities that you can prepare for them and leave in a place that is easy for them to obtain.

In your digital world, you also want to help your successors by creating an inventory. The more detailed and accurate the better, of course, but even a small start can be of help.

Here are some of the things I’d suggest that you inventory:

1. Hardware. Inventorying your hardware and the data contained in each item seems like an easier project that it actually will be. I suggest that you create a list of your hardware with a summary overview of what data is on it. Creating the inventory is likely to be an eye-opener for you. You are likely to find that you have important information not only on the computer system you use every day, but also on many other computers. Many of us have at least one laptop and one or more desktop computers, as well as smartphones and tablet devices, perhaps all syncing to “cloud” storage on the Internet. Many people keep copies of vital information on their work computers. Where do you back up information? You might have many USB flash drives, USB hard drives, backup CDs or DVDs. There might be important pictures still on digital cameras and even information on iPods, smartphones, tablets and other devices.

2. Software. Do you use Quicken or another financial program? What income tax preparation programs do you use? Do you create spreadsheets or Word documents with important financial information? If you blog or use social media, are there authoring programs that someone would need to use to post news to your blog, Twitter or other social media accounts?

3. File Structures. Your inventory should sketch out the main folders and places where you keep personal, financial and client files and documents. For someone like me, I also have audio and video of presentations and podcasts that I’d want someone to be able to locate and deal with. You might have important collections of family photos or videos or work in progress.

4. Online Presence. Create a list of your website(s), blog(s), Facebook and other social media accounts, online backup sites, online sites where you store documents, photos or other files, and listservs, groups or other sites you belong to. The use of social media has exploded in the past few years. Facebook alone has more than a billion users.

5. Online Accounts. Amazon and other shopping sites make it easy for you to create accounts and include credit card information. You might also have online access to bank and investment accounts. In fact, in many cases, you might no longer be receiving paper statements for accounts. If you don’t identify these accounts, it will be difficult for your successors to even know that they exist because there simply will be no paper trail. Also, make a list of all the email accounts you have and use. Most of us have several email accounts these days.

6. Work Information. Lawyers might have access to client sites, collaboration sites, online document repositories or other information that no one else knows about. Similarly, they might have access to software, online tools or online databases that someone taking over their work will need to have. In some firms, a lawyer might have important network passwords, backup media or other digital assets the existence or value of which is not realized until they are gone.

At this point, you really want to gather and collect as much information as you can for your inventory. You can work on organizing and prioritizing it later.

Step 2. Identify Appropriate Help. In our estate plans, we typically name a surviving spouse or adult child, especially one with financial savvy, as a personal representative or trustee. That person, however, might well be the worst possible choice for dealing with our digital assets, especially if they are not computer savvy. We also recommend appropriate lawyers, accountants and financial planners to assist our survivors with our financial affairs after our deaths.

You will want to give serious thought to who should be looking into your digital assets on your demise and give thought to naming them in an official capacity in some cases or clearly identifying as “go to” people in other cases. Are there ways you can make things easier for your survivors?

Here’s a simple exercise to help you. Imagine that you have died or are incapacitated. Who do you want to turn on your computer to find out and deal with what’s there? Let them know that and let others know that. If the IT person in your office could assist your surviving spouse, then make it clear that she should be engaged to help. A child you might not want making financial decisions might be just the one you want going through your digital world.

I also suggest talking to your estate planning lawyer to see if dealing with your computers and digital assets is something he or she has expertise with.

Step 3. Provide for Access. While we are all cautioned never to write down passwords and PIN numbers, the simple fact is that, if we do not do that and keep them in a safe place where they can be found at an appropriate time, no one will be able to access our computers and accounts. This not only can cause delay, frustration and inconvenience, but it can mean today that our best friends scattered around the country and world might well find out about our demise weeks after a funeral that they would have undoubtedly wanted to attend.

Unfortunately, as I mentioned above, good security means that your passwords are a moving target because you should be changing them on a regular basis. I still think it’s useful to keep a list of passwords in a safe deposit box or other safe place that someone knows about. My old law firm routinely keeps important personal documents of its clients in a vault. Keeping a document with your passwords and other online account information with the other important documents will help your survivors. Another approach might be to tell your lawyer where the password list is kept and let them tell your survivors at the appropriate time so that it can be located. If you use password management software (and everyone should), you will want to let people know and make sure that the password for that program (which is necessary to get the passwords for other accounts) can be located.

Do not underestimate the difficulties that can arise from passwords. It is possible that some of us now have hundreds of passworded accounts. In most cases, you should be able to eventually get access to accounts with a death certificate and appropriate documentation, but you cannot assume that will be the case. Many online accounts have initiated their own procedures and you will need to check the terms of use for each service, some of which might surprise you or pose some difficulties. That should provide an alternative to the morbid or grisly ideas you might have had when I mentioned the thumbprint scanner issue earlier in this article.

Keep in mind that security continues to evolve. Many people use thumb prints or facial recognition instead a password, especially on smartphones. The current state-of-the-art in security – multi-factor authentication – often requires that you have both a password and a device (two factors), such as a smartphone to which a code can be sent for use. In other cases, you might need to know answers to personal security questions. Biometric methods raise their own sets of issues.

Step 4. Leave Instructions. I started with the story of Andy Olmsted because it is a perfect example of someone who knew what he wanted to happen and gave instructions for that to happen. Most of us will not reach a point where we will sit down and provide detailed instructions unless we face what I used to call when I did estate planning a “focusing event” – both spouses flying on the same plane, going into combat, terminal illness or the like.

There are a number of areas where your survivors would appreciate instructions:

• Notifications. Many of us now have Facebook “friends,” LinkedIn “connections,” Twitter “followers,” and others we communicate with on a regular basis. If we have a blog or website, we might have people who read our words or visit our sites on a regular basis. If we want those people notified, we need not only to make our wishes clear, but to provide access to the tools and give instructions so that can happen. Think about Andy Olmsted’s example. He wrote the post, but he had to let someone know that it existed, how to access his blog, how to post it to his blog, and how someone should respond to the comments the post would receive. There are instances now of survivors who continue to update Facebook accounts and provide other information online after someone dies.

• Continuing or Closing Sites. In my case, I have a website that’s been around for almost twenty years and a blog with more than ten years of posts. I’m not sure that I really want that to disappear. It would still be a valuable resource if I were gone. If you want a site to continue, you will want to give instructions as to how that might occur (e.g., preserve what’s there or perhaps have someone take it over and continue it). Even for sites or accounts that you want closed, you might want to be sure that a copy is made and kept, and that pictures, audio or video are saved. Many people have several active social media accounts that could be used to notify friends and provide funeral and other information.

• Realizing Value. Let’s face it, none of us are likely to realize the post-death financial revenues of Graceland and the Elvis Presley estate. However, simply shutting down sites might cut off potential revenue streams from e-books or other revenue-producing items. In the case of popular blogs, photography sites or online videos, your estate might be able to realize income from licensing, creating a book or taking other steps to “monetize” content. In some cases, you might have already started some of those projects.

• “Do Not Delete” Items. People now routinely digitize all kinds of important document, photos and video. For example, you might have scanned historical family pictures or family videos, or have a folder with the novel or screenplay you’ve been working on. If you intend that they be passed on, make sure that they are identified and not lost when a hard drive is deleted.

• “Bequeathed” Information. As mentioned above, you might be keeping family, business or other information that should be made available to specific people or even donated to a university or other archive. Documents containing instructions about collections, disposing of property, articles or stories to be published, and even personal guidance to family members need to be maintained in a way they can be located and made available to others. Consider again Andy Olmsted’s approach.

Step 5. Give Appropriate Authority. For some of us, and this might become more the case as time goes on, it makes sense to designate specific knowledgeable people and provide them with the appropriate authority to manage our digital assets. It might make sense to designate co-attorneys-in-fact, so-executors, or co-Trustees where one is specifically tasked with taking the responsibility for our digital assets and affairs. Finding estate planning lawyers who are experienced and knowledgeable in “digital estates” will be essential in certain cases. In addition, you might look into ways that your online accounts might permit you to designate others to act on your behalf or get added to your accounts. Especially in the cases of people who are not married or in a state where domestic partnerships would help, finding ways to give exactly the people you want to manage your digital affairs will be very important. I expect to see this area continuing to evolve, with many areas of uncertainty. Note that in many states, the Uniform Fiduciary Access to Digital Assets Act has been implemented in some form to help deal with digital access issues.

Tips for Providing Assistance after the Death of Another.

It’s also possible that either as a survivor or as a lawyer, you might find yourself in a position where you need to handle someone’s digital affairs. I have a few tips.

• Find knowledgeable technical and legal help.

• In the case of a death, try to get to contact lists, email accounts and social media accounts to notify friends who the deceased would want to be notified.

• Change all passwords as soon as possible. Cybersecurity might be even more important after someone has died than while they are alive.

• Try to understand the totality of the person’s online presence and identify some of the people that interact with most for assistance, especially in the social media platforms.

• Do not start closing accounts, shutting down hosting and email or taking other drastic steps until you have a good sense of what is out there and what you are ultimately going to do with it. Keeping a website up for a year or more will not be expensive. Shutting it down too early and losing valuable data could be quite expensive.

• Be slow to delete, but when you delete or dispose of computers and drives, delete them in accordance with forensic standards so data cannot be retrieved from them by others.

• Spend $100 on an external USB hard drive and make a copy of all hard drives, flash drives and other data and keep them in one safe place. Once you start to go through the data, you can keep another drive with the “good stuff.”

• Make copies of websites and other online accounts.

• Locate all the financial information and client records as soon as possible and aggregate and isolate them.

• Remove credit card information from shopping accounts.

• Determine whether there is ownership of cryptocurrency, where it is kept (in some cases, could be on a USB drive on a keychain – seriously, I’ve met people who do that), and whether there is a way to access it and transfer it.

• Err on the side of keeping email, documents and photographs for family members.

Start Thinking About Your Digital Estate Plan Today.

The issues of what death means in the digital world has been with us for many years. It really started to come to public attention with the Iraq war, especially in terms of access/ownership of email accounts and getting to online banking and other accounts by survivors of soldiers killed in action. Today, our lifetime digital presence has grown exponentially and the issues involved in handling our digital assets and affairs have also grown dramatically. If you take time to work on the five-step plan suggest by this article, ideally in connection with updating your estate plan, you’ll help make things easier for your survivors and improve that the chance that your wishes are followed. Read Olmsted’s blog post, dry your eyes, and start on your plan today.

#digitalestateplanning #estate planning #digitalassets

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An earlier edited version of this article appeared in the March 2010 issue of the Law Practice Today as “Estate Planning for Your Digital Assets.” It is been significantly updated in this version, but most of the basic principles have not changed during that time.

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Why you Need to Start Thinking About your Digital Estate Plan

Why you Need to Start Thinking About your Digital Estate Plan

Why you Need to Start Thinking About your Digital Estate Plan

Click here to view original web page at Why you Need to Start Thinking About your Digital Estate Plan

Joan Mitchell in her studio in Vétheuil, France, 1983. Photo by Robert Freson, Joan Mitchell Foundation Archives. © Joan Mitchell Foundation

By Natalie Koza and Eleni Demestihas

Traditionally, when someone died, their executor would follow a standard process to settle their estate: locate the will, go through file cabinets to look for other important documents, and file a tax return at the end of the year. These days, much of our lives are conducted online, and that can lead to big headaches for families attempting to sort through digital accounts and possessions, especially if they don’t even know what those are. Just as traditional estate-planning relates to the management and transfer of financial accounts and hard assets, digital estate-planning encompasses your digital possessions, including tangible digital devices, stored data, and online accounts.

Given the increasing digitization of music, the importance of managing your digital estate as diligently as you would manage the rest of your legacy has become increasingly important. Whether world-famous or simply aspiring, most musicians have considerable digital footprints. Your digital estate includes all of the digital property you would expect such as .mp3 recordings of songs, social media accounts, and text messages. It also includes your digital rights, meaning the rights to both own and use your digital property. For musicians and composers, this includes the right to use and publish your music. The best way to start planning for future administration of your electronic works is to identify the components of your digital life. Here are a few ways you can begin updating your estate plan to protect your digital afterlife and help loved ones access the information they need to settle your affairs.

Organize all of your Digital Agreements and Contracts

One of the most important ways to help preserve your digital legacy is to carefully document and inventory all agreements you make regarding your artistic works. When you sign contracts or enter into agreements with others concerning your works, you alter your relationship to those works, either temporarily or permanently. As the creator of an artistic work, you have certain legal rights regarding that work. If the work is protected by copyright, you have the exclusive right to reproduce and make copies of your work, to prepare derivative works based on the original work, to distribute copies to the public, and to perform or display your work in public. Many times, agreements that you enter into regarding your intellectual property serve to give others a limited right to distribute your work within a certain time frame, or a right to make copies of your work for a specific purpose. It’s important to keep track of these agreements so that you and the future executor of your estate can make sense of what your rights are regarding your digitally-stored works. Today, plenty of these agreements may also be completed digitally, over email or using .pdfs. Just as you would store a paper copy of a contract, be sure to store all digital agreements that you enter, whether formal or informal. In the future, an inventory of these agreements might help an executor preserve your estate by understanding who has the right to distribute your work, other than the estate itself.

Make Inventory Lists Of Your Digital Assets And How To Access Them

This is a critical yet oft-forgotten consideration when it comes to digital estates. When naming an executor to administer your estate, it is essential to ensure that they have access to your online accounts and protected documents. Your social media, email, banking, and online storage accounts are probably the first things that come to mind. But the list includes much more such as loyalty rewards points, websites and blogs that you run, and domain names that you own. Once you’ve compiled this list, you should document all of the usernames and passwords, and decide who you want to share them with. Additionally, you should decide what you would like to happen to each of these resources. Many of these assets will be easy to administer. A number of states now have laws governing the handling of online accounts upon a user’s death and often, a written authorization is effective for all online accounts. Through a digital asset authorization, will, trust, power of attorney, or other written record, you can direct an online service provider to disclose your accounts’ contents to someone with the legal authority to oversee your estate.

Deciding what to do with some of your other assets will require more thought, particularly if you have a valuable online presence that generates revenue or can potentially be monetized. For example, if you have an online store or a blog that brings in advertising income, you need to consider whether you will want to shut these sites down, pass them on, or attempt to sell. Leaving a letter of direction about how you want certain accounts to be managed can help solve this issue. Whatever your plan is, it is crucial that you inform family that you have made it and store the information in a secure location. While the information may be incredibly sensitive, it must also be accessible so that an executor can put your plan into action when the time comes. Consider the cautionary tale of Leonard Bernstein. When Bernstein died in 1990, he left a draft of his autobiography spanning his lifelong career as a renowned composer, conductor, pianist, educator, and humanitarian on his computer. That memoir, however, only existed as a password-protected electronic document. Because the password was never documented, the memoir, likely a valuable part of his legacy, was never published and remains unopened to this day.

While the basics of estate planning have not changed, the scope has expanded dramatically in recent years. Taking inventory of your digital life to ensure the proper management and orderly transfer of your intangible assets is now a vital component of the estate planning process. As we continue to move into an online, digital society, the crucial information that is often buried deep in your computer files or simply stored away in your mind must be clearly documented in order to best preserve and continue your legacy.

Natalie Koza and Eleni Demestihas are legal interns with the Arts & Business Council of Greater Boston. Natalie, a Detroit native, studies copyright and trademark law at New England Law | Boston. Eleni, a former playwright from Atlanta, studies sports and entertainment law at Boston College Law School.

The Arts & Business Council, home of the Volunteer Lawyers for the Arts of Massachusetts, provides legal and business support services for artists, arts nonprofits, and arts and cultural organizations throughout the state. As part of a partnership with the Joan Mitchell Foundation, the Arts & Business Council is also a national provider of legacy planning resources for artists, having co-authored the Foundation’s Estate Planning Workbook for Visual Artists and Workbook for Attorneys & Executors, available at https://artsandbusinesscouncil.org/estate-planning-legacy-services-for-artists/.

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Digital Estate Planning – It’s Time to Plan for your Digital Assets

Digital Estate Planning – It’s Time to Plan for your Digital Assets

Digital Estate Planning – It’s Time to Plan for your Digital Assets

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In the year and a half since I last wrote about planning for digital assets not much has changed in Massachusetts. Our state is still one of a handful of states that has not enacted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)although there is a bill pending in the Massachusetts legislature that would do so. This bill would clarify the authority your appointed fiduciaries (such as your agent under your Power of Attorney, or the Personal Representative of your estate) would have to access your digital assets if you become incapacitated or pass away.

What has changed in the past year and a half is that we all continue to be more dependent upon technology, and our digital footprint increases with each passing day. We continue to use social media, online photo and document storage, and email on a daily basis, increasing the digital “assets” we have stored in these accounts. The importance of the assets stored online has also increased – perhaps this is the only place you now store vacation photos (rather than putting them in your photo album), or perhaps you only receive your bank or investment account statements online rather than in the mail. This online footprint will only continue to grow, as will the need for your estate plan to address your digital assets.

The more digital assets become mainstream, the more important it is to plan for access to these assets by others if you are not able to do so. To the extent these accounts contain information that you would like someone to be able to access after your death or incapacity, it is necessary to provide the appropriate authority for such access as well as instructions about what you want done with these “assets.” For some types of these assets, digital estate planning strategies are is crucial to prevent financial loss (i.e. the loss of a domain name used for business purposes, bill payment, access to investment account information), to protect sensitive personal information (on-line dating websites), to avoid identity theft, and to allow access to valuable assets (think bitcoin or an author’s manuscript).

Here are some tips to manage your digital assets until Massachusetts law catches up with the rest of the country and we have a clear roadmap for access for Massachusetts fiduciaries:

  • Review the terms of service agreements for the online accounts you use. Understand what those agreements provide about access, and if and how others can be given permission to access your account. Have a qualified estate planning attorney review these on your behalf if you have questions.
  • If an online entity offers a way for you to give permission or access to your digital assets stored with that company, pay attention and follow the directions. For example, Facebook allows you to designate a Legacy Contact who can manage your account after you die, or you can choose to have your account deleted if you pass away. Google allows you to control what happens to your account through their Inactive Account Manager feature. Here you can designate when your account will be considered inactive, what should happen to your Google account in that event, and designate one or more people who will have access to whatever portions of your Google account you choose.
  • Update your estate plan documents, specifically your Power of AttorneyWill and Trust, to ensure those documents grant express permission for the fiduciaries named in those documents to access your digital assets, and express direction regarding what should be done with specific digital assets at death. In our office, we include express permission for access in these documents.
  • Keep a current list of your usernames and passwords in an online password manager or recorded in another way where a trusted person can access this information if needed, and let that person know where this information is located. As a start, we provide our clients with a Digital Assets Memorandum that can be used to record access information and instructions about digital assets.

Keep in mind that if you have not used an online entity’s prescribed method of giving someone permission to access your account, and do not have express permission and direction in your estate plan documents, the company’s Terms of Service Agreement will govern. In such a case, you and your digital assets are at the mercy of the online provider, which may not allow access following your death or incapacity. Don’t fail your loved ones with poor digital legacy planning.

March 2019

© 2019 Samuel, Sayward & Baler LLC

Digital Estate Planning: How to Plan for Online Accounts

Digital Estate Planning: How to Plan for Online Accounts

al advisors take the following steps to help individuals prevent obstacles and frustration for loved ones when trying to access online accounts and information.

Grant Access Within Estate Planning Documents

As an advisor, the next time you meet with your client to review their estate planning documents, discuss their intentions for any digital assets they may have. If it’s their desire to share the information with others, determine if it’s appropriate to update the language in their planning documents to give lawful consent for service providers to disclose the contents of their online accounts to the appropriate people.

In most cases, newer trust documents have verbiage included that authorizes the release of digital account information to the appropriate person(s). From an advisor’s perspective, it’s important to go one step further and provide the necessary tools to clients to help them organize and structure their digital asset information within their estate plan. Once completed, this digital access map will provide ease for those needing to access the data upon the client’s passing or incapacitation.

Advise Clients to Prepare a Digital Assets Checklist

Clients should think through their account types and determine what is password restricted. In doing so, here are some common examples of digital assets they may consider sharing their online access to:

  • Computers
  • Email accounts
  • Social networking sites and blogs
  • Bank and financial accounts
  • Companies in which you have set up automatic bill-pay
  • Cell phones, personal digital assistants and other electronic devices
  • Online services (online storage, records, pictures, etc.)
  • Important contact information
  • Locations and access information to safes, safe-deposit boxes, alarms, etc.

The details on how to access these types of accounts should be documented and kept in a secure location. For clients that prefer paper records, they may choose to keep handwritten information with other printed materials like bank statements and estate planning documents. Other clients may be interested in storing their digital information on a portable flash drive or similar backup media. Another option would be to use an inexpensive and secure password management program such as Keeper to organize and store the information for them. Solutions like Keeper serve as a vault for passwords and account information while providing great security features for protecting digital assets. Any of these solutions are good options for storing digital information, but of course, someone needs to know where it is and how to access it.

Know Your Client

Because the online world is growing rapidly and current laws around digital asset management are continuously changing, it’s important for advisors to know their clients to best assist them with their digital asset planning. As an advisor, you can assist your clients in tracking their assets and reviewing their estate plans on an ongoing basis to ensure they are aligned with their wishes as well as current laws. The time and tools you invest in bringing awareness and preparation to your clients through this process is invaluable.

What happens to one’s online identity after death is up to each person, but just like other aspects of life, it needs to be planned for. As an advisor, you can help your clients understand the realities of digital asset planning as well as help them prepare their estates for their digital afterlife.

Stacy Beekman is responsible for the day-to-day trust administration and fiduciary compliance of her clients at Greenleaf Trust. She has over 21 years in the financial services industry and earned a bachelor’s degree in business administration from Grand Valley State University. Stacy is also a graduate of Cannon Trust School.