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A Better Partnership

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Oct 2013
21
October 21, 2013

Planning in the Digital Age


When my grandfather died, he left my father a file full of his handwritten sermons.  What would have happened if my grandfather had lived, as we do, in the digital age?  What if he had written his sermons on a computer or stored them in “the cloud?”

The world has changed.  Both estate planners and those planning their estates have a host of new things to consider, especially given that the law is notoriously slow to catch up to technology.  Today, estate planning requires taking stock of and planning for not only physical and monetary assets, but also online and digital assets.

Consider the hypothetical case of a professional photographer.  In the past, photos and film would have been physically stored and bequeathed as a physical asset.  Today, a photographer’s photos are more likely stored as digital files, perhaps on a personal computer, server or cloud service such as iCloud.  According to Apple’s terms of service (and consider how often you’ve accepted these terms of service without reading a word of them), all data stored on its iCloud service will be deleted upon the death of the user.  This could pose a real problem for the photographer’s heirs.

Of course, you needn’t be a professional photographer to have this dilemma since many of us have photos and digital assets with monetary or sentimental value that we would like to pass on to future generations.  So it’s worth taking stock of your digital assets and considering those assets when planning your estate.

One place to start is to make an inventory of all of your online accounts – e.g., e-mail, bank accounts, social media, photosharing sites, cloud computing services, PayPal accounts, etc. – and the passwords for those accounts.  Consider the actual or sentimental value of information that is digitally stored online or on your computer’s hard drive.

Then consider what you might want to happen to that information after your disablement or death.  Is privacy a concern?  If so, you may want digital assets later deleted.  Or you may want some or all of your digital assets preserved.  In either case, you are wise to think about who will have rights to access and what will happen to these assets.

Then incorporate your wishes into planning documents.  For instance, disability documents may give an agent the right to access digital accounts and a will or trust can include provisions covering online assets.

State and federal laws have not kept pace with technology.  To date, only five states have laws regarding the legal status of digital assets when someone dies.  Having considered and planned for your digital assets will make it much more likely that they will be used and handed down in the ways – and to the people – you intend.  

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