Chambliss Estate Planning Essentials brings you legal developments and other trends of vital interest in the world of estate planning. This post is brought to you by Leah McElmoyl and other members of the Estate Planning Practice Group of Chambliss Law Firm.
Photos, Videos, Music, Emails – What Happens to Your Digital Assets After Death?
"Take care of all your memories… for you cannot relive them." – Bob Dylan
In today's world of technology and social media, most of our memories are not documented in physical assets, but in digital ones. Whether it be on your mobile device, social media page, iTunes account, or the cloud, many of your favorite memories (photos, videos, music, text/email conversations, etc.) may only be accessed digitally. Also, many of our financial and business affairs are conducted through digital means. Consider how many bills you pay online. Consider how many payments are automatically deducted from your online bank account each month. You have a password (often times a different password) associated with each of those vendor accounts, and most importantly, with the email address associated with those accounts. Due to concerns of identity theft and hackers, you most likely change those passwords periodically. (Free tip of the day: if you don't, you should!)
So, what happens to these assets (and yes, they are considered assets – better known in the estate planning world as "digital assets") upon your incapacity or death? Who has the right to access your phone, social media, iTunes, email, etc., and once they have access, how do they retrieve the assets? Do they even have the right to retrieve them?
Each type of digital asset presents its own challenge. For example, the process for accessing and/or transferring the digital currency Bitcoin is very specific and if not followed correctly, could result in complete loss. If you have Bitcoin, you should definitely educate yourself about how to use it and transfer it.
Due to the fast pace nature of technology in our world today, and the infancy of this concept of "digital assets," the law in this area is constantly playing catch-up. Tennessee has enacted the Revised Uniform Fiduciary Access to Digital Assets Act. Since 2013, at least 42 states have enacted laws addressing access to certain digital assets upon a person’s incapacity or death. These laws are essential in giving fiduciaries (executors and trustees) legal basis to access a decedent's digital assets; however, there are still many things that can be done ahead of time to make the process easier on fiduciaries and beneficiaries.
Finally, it is important to note that these issues are not limited to millennials who have grown up in the technology era. My grandmother has an iPhone. She has an email account and a Facebook account. She is constantly taking pictures on her phone and always trying to figure out the easiest way to get them on her computer so she can print them off. Honestly, due to the fact that many of our digital assets have turned out to be merely licenses for use, she may be smarter than the rest of us – if you can't physically hold it, touch it, see it, do you really own it?
The bottom line is we want to alert you to a very important aspect of estate planning that you may have never thought of before. In keeping with the motto that estate planning involves much more than just a will, we recommend that you contact an experienced estate planning attorney to assist you in planning for your digital assets in order to ensure that they are accessed and/or distributed according to your wishes. If your wishes are that they never be accessed by anyone, it is important to plan for that also.