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As technology continues to be an integral part of daily life, it is important to create a digital estate plan to provide for the security and management of your digital assets in the event of incapacity or death. By creating a digital estate plan, you will have peace of mind knowing that you are protecting your digital assets from risks like hacking, fraud, and identity theft by providing someone you have designated as your fiduciary (such as your Attorney-In-Fact under a Durable Power of Attorney, your Executor under your Last Will and Testament, or your Trustee under your Trust), with access in order to protect your digital legacy.
The following four steps will help you to create your digital estate plan:
Prepare an inventory of your digital assets and devices and make sure that the person designated as your fiduciary has access to the inventory
- Protect your digital legacy by listing all the digital assets you own along with their respective usernames, PINs, passwords, and the answers to security questions.
- Digital assets include any accounts, documents, information, records, and photographs that can be accessed by using a computer, tablet, smartphone, or other electronic devices.
- Examples of Digital Assets: financial services, health-related services, home-related services, cryptocurrencies, email accounts, social media accounts, websites, blogs, photos, videos, and music accounts, e-commerce and marketplace accounts, subscriptions, data storage, streaming services, loyalty, and reward programs, data stored on devices, smartphone accounts, apps, and data, etc.
- List all the digital devices you use to access your digital assets along with their respective usernames, PINs, passwords, and the answers to security questions
- Digital devices include all electronic devices
- Examples of Digital Devices: computers, laptops, tablets, smartphones, e-readers, etc.
- Create a “Digital Will” to securely store all information regarding your digital assets and devices
- For your use, we have a “Digital Will” form on our website at: http://www.vjrussolaw.com/wp-content/uploads/digital-assets-chart-150814mwc.pdf
- Upon completion, you should share your “Digital Will” with your Attorney-In-Fact and your Executor (or at least let them know where it is and how to access it).
Include provisions in your estate planning documents
- Your Durable Power of Attorney, Last Will and Testament, and/or Trust should contain provisions that specifically authorize your fiduciary to access your digital assets. Notwithstanding, please note that since access is governed by the contracts you agree to with the online companies/custodians, your fiduciary may be denied access. However, arguably, a fiduciary has the legal authority to act on your behalf.
- New York law provides for the custodian of the digital assets of a deceased user to disclose the digital assets to the executor, administrator, or personal representative of the estate of a deceased user unless the deceased user prohibited disclosure, or the court directs otherwise. The fiduciary must provide the custodian of the digital assets with the following information and documents:
- (a) a written request for disclosure in physical or electronic form;
- (b) a copy of the death certificate of the user;
- (c) a certified copy of the letter of appointment of the executor, administrator, or personal representative or a small-estate affidavit or court order; and
- (d) if requested by the custodian:
- (1) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
- (2) evidence linking the account to the user;
- (3) an affidavit stating that disclosure of the user’s digital assets is reasonably necessary for the administration of the estate; or
- (4) a finding by the court that:
- (A) the user had a specific account with the custodian, identifiable by the information specified in subparagraph (1); or
- (B) disclosure of the user’s digital assets is reasonably necessary for the administration of the estate.
Confirm whether the online companies/custodians have provisions for substitute access
- Many online companies/custodians have their own systems for providing access to a person in the event of incapacity or death. It may be possible to designate someone to have access upon your incapacity or death. For example, Google allows for the appointment of an “Inactive Account Manager”
Save your digital assets such as photographs, videos, and documents to one or more USB drives and/or external hard drives and print important documents
Taking these four steps will help you to protect your digital legacy and provide you with peace of mind. Since technology and the laws regarding digital assets continue to change, you should revisit your digital estate plan annually. Russo Law Group, P.C., has knowledgeable attorneys who can provide professional services and advise you regarding your digital estate plan, as well as your overall estate plan. We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. may assist you and provide you with peace of mind.