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Thursday, June 16, 2016

Access to Digital Assets as Part of Estate Planning

How can I make sure those who need access to my digital assets after I die will have it?

In the current world, most of our records are stored electronically. We all have numerous passwords, easy to mix up or forget. It is necessary, therefore, that, as we tackle the job of estate planning, we ensure that our digital assets, as well as our paper documents, can be accessed by those we designate.

What are digital assets?

"Digital assets" is the terms for information, records and data stored on the computer in electronic form. For any individual acting as a fiduciary, meaning a personal representative of an estate, a trustee, a guardian, of the holder of a power of attorney, it is essential to have access to digital assets. This is frequently not as easy as it sounds, and, in many cases, is problematic. Because internet storage systems are designed to protect privacy and to meet legal standards, the fiduciary must be prepared to meet high standards to establish legal authority to have access.

What steps have to be taken to grant access to digital assets?

Estate planning is a complex process, generally more complicated the more your estate is worth. This is why it is extremely important to have a skilled estate planning attorney assist you so you can ensure that your wishes will followed and will be legally binding and financially sound. Granting access to digital assets is an important factor to consider in estate planning. A knowledgeable attorney with experience in the field will be able to guide you through the process.

In order to ensure that your digital assets are accessible, it is necessary to have documents prepared stating specific directions and authorizations in which you give your fiduciary access to your online accounts and electronically stored data. This procedure is important as it erases any doubt of your intentions and is sufficient to gain cooperation from any service providers or custodians of your internet connections.

An individual should review options available for directing and authorizing fiduciary access to and disclosure of digital assets, and how this can most effectively be done. It is advisable for the written provisions of pertinent estate planning documents to specifically describe and recognize the existence of digital assets, and to include terms and provisions to carry out their intended planning. If desired, the documents should include specific provisions authorizing a designated fiduciary to access and use the digital assets, and the extent of this access.

To resolve these digital asset legal questions and provide consistency, a new uniform state law entitled Revised Uniform Fiduciary Access to Digital Assets Act has recently been adopted and proposed by the Uniform Law Commission. It has been introduced in the Oklahoma Legislature but, as of this writing, has yet to be enacted into law. The discussion of the purpose and meaning of the law published by the Uniform Law Commission is a helpful source of background information about digital asset issues that can be involved in estate planning.


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575 Lynnhaven Parkway, Suite 301 , Virginia Beach, VA 23452 | Phone: 757-215-4051
5425 Discovery Park Blvd., Suite 101, Williamsburg, VA 23188 | Phone: 757-215-4051