VanAntwerp Attorneys, LLP
Phone: 606-618-0698

Estate planning in the digital age includes your digital assets

With effective estate planning, you may be able to transfer assets cost-effectively, reduce estate tax burden and limit the need for probate. It can grant authority to act on your behalf should you become incapacitated. Ideally, it would give access to everything necessary to manage and transfer your assets.

What about your digital assets, though? Emails, social media and online financial accounts are crucial to most people in modern life. Unfortunately, the law has not kept up with the digital age. It's currently not clear that a traditional estate plan grants the legal right to use these accounts.

Having access to many of these accounts, however, could be critical, or at least extremely helpful to the proper administration of an estate. You may have turned off paper notifications for your bills, for example. You may have investment or retirement accounts that you can only access online. The most complete list of your friends and relatives may be on Facebook.

Unfortunately, the terms of service for most of these accounts expressly limit access to the account holder. Meanwhile, unauthorized access to these accounts can be a federal crime. Your estate administrator and the person to whom you grant power of attorney are legally authorized to act on your behalf, but it's not entirely clear they are authorized to access your online accounts.

Take steps to fully authorize your estate administrator and power of attorney designee

You need to authorize the person to whom you granted a power of attorney to make financial decisions and pay bills on your behalf, including your electronic accounts, in the event of your incapacity. You need to authorize your estate administrator to take over these accounts upon your death. What can you do?

Although the law is unsettled as to who besides the account holder can lawfully access online accounts, there are some steps you can take:

1. Keep an updated list of your accounts, logins and passwords. Keep it somewhere safe where your family or designee can access it, such as a locked desk drawer or a fire safe. Do not include this list in your estate planning documents, as they may be shared with courts and financial institutions and could become part of a public record.

2. When allowed, name a backup. Some service providers allow you to name a legacy contact or secondary account manager. Be aware, however, that these may not be given full access.

3. Make your intentions explicit in your estate plan. Have your attorney draft a statement authorizing your power of attorney designee and estate administrator to access your online accounts. This will limit the chance they could be accused of accessing the accounts without authorization and may persuade service providers to cooperate fully with them.

Due to the prevalent use of technology in our society, providing for the safeguarding and effective transfer of digital assets is a necessary part of any estate plan.  Contact our office for assistance with your estate planning needs.

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