When creating a will or trust, of course it is important to make decisions about the future of tangible assets like money and property. Attorneys now remind us that we have to consider our digital assets too. With more and more of life lived online, it’s important for friends and loved ones to understand intentions for the digital treasures we accumulate.
Inventory and Communicate
Estate planning and elder law specialists at Wilson & Wilson offer this helpful way to understand what “digital assets” include: “In a general sense, a digital asset is any type of electronic data that you have the right to access, including things such as e-mail, social media, online subscription, E-commerce, loyalty program, or online bank accounts, as well as cellphone apps and electronic currency wallets (Cryptocurrency).” Unlike our material possessions, digital assets are not always readily apparent to beneficiaries, making communication about our intentions vital:
Digital assets are just as important as physical assets such as your cash or credit card. It can be easy to overlook digital assets, but they still hold value. For example, you may have stopped printing photos and may instead store them on Google Photo or on another website or app. If you lost all of the photos you have stored digitally, how would you feel and how would your loved ones feel if they lose access to them after your passing?
An important step when working with an attorney to create a will or trust, is the designation of a fiduciary to administer the will (aka executor) or trust (aka trustee). Make sure your designee understands their fiduciary responsibilities and arm them with practical information too. Related to digital assets, attorneys say “You should leave specific instructions in your estate planning documents or in a separate letter for your Executor, Trustee and/or Agent to let them know where they can find your passwords, what should be done with your digital asset accounts and social media accounts, and who will receive your digital assets upon your passing.” Given the responsibilities carried by executors and trustees, fiduciary bonds are commonly required. Essentially, fiduciary bonds, such as executor bonds and trustee bonds, guarantee the faithful performance of the appointed administrator. As a leading national provider of many types of fiduciary bonds, Colonial Surety makes it easy and efficient to obtain an executor bond or a trustee bond. Just get a quote online, fill out the information, and enter a payment method. Print or e-file the bond from anywhere—even the law office.
State Laws and Digital Assets
Executors, trustees and other legal agents representing an estate are typically granted access to the digital assets of the deceased in accordance with state laws. Attorneys offer this preparatory guidance:
It is important that the right to manage and access your digital assets and digital devices is specifically referenced in your Will, Power of Attorney, and Revocable Trusts (if digital assets are transferred to a Trust). However, it’s important to note that having the authority to gain access and the ability to gain access are not the same. Many digital platforms have very strict guidelines when it comes to granting access to a third party. It’s important to provide your loved ones with the information they need to gain access to your digital assets, but you also need to review the Terms of Service Agreements of your digital providers to see if third-party authorization can even be noted in your account(s). For instance, Facebook lets you choose a “legacy contact,” who would be granted access to your Facebook page and the ability to delete the page or memorialize it after you pass away according to your wishes.
Helpful To Understand: Will or Trust?
Wills and trusts are both useful tools in estate plans. Legal experts at JD Supra note: “The most significant difference between wills and trusts is probate. Probate is the court-monitored process of transferring your assets to your loved ones. If you have a will, your assets will be administered through the probate process. Generally, if you have a trust, your assets will be transferred to your loved ones without probate.” It’s important to keep in mind that probate is not inherently bad—and experts even point out that in some cases, such as situations involving debts or conflicts, probate can be helpful. Probate processes have become more efficient and most states even offer expedited procedures depending upon the level of assets involved.
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