Have You Heard of Digital Estate Planning?

Posted November 3, 2015 in Estate Planning by Michael Lonich.

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November 3, 2015
Have You Heard of Digital Estate Planning?
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In today’s increasingly technological world, leaving your digital accounts out of your estate plan can prove to be a big mistake. As of 2014, 84 percent of American adults own a personal computer and 64 percent own a smartphone.[1] As of June 2015, there were approximately 1.49 billion Facebook users, 300 million Instagram users, hundreds of thousands of videos uploaded on YouTube each day, and over 6 billion photos on Flickr.[2] Given the user increase, more and more people are challenged with administering a loved one’s digital assets.

Digital assets can include files stored on digital devices, email accounts, digital music, digital photographs, digital videos, social network accounts, file sharing accounts, online stores, and software licenses.[3] The entirety of these digital assets forms an individual’s digital estate. Due to the role technology has in today’s world, the deposition of digital assets has become a major issue in estate planning.

One of the biggest concerns necessitating digital estate planning is the emotional value of social network accounts. For example, in 2005 a dispute arose in which a mother, Karen Williams, turned to her twenty-two year old son’s Facebook account after his sudden death in hopes of learning more about him.[4] Ms. Williams found her son’s password and emailed the Facebook administrators, asking them to maintain her son’s account so she could look through his posts. However, within two hours, her son’s password was changed, essentially locking her out of the account. It was not until she filed a lawsuit that Facebook granted her ten months of access to her son’s account and after this period, his profile was removed.

With careful digital estate planning, situations like Ms. Williams’ are less likely to occur. Digital estate planning can also serve a variety of purposes aside from the emotional value. It can make things easier on executors and family members, it can prevent identity theft, it can prevent financial losses to the estate, and it can prevent unwanted secrets from being discovered.[5] However, the current state of the law is uncertain and changing in regards to digital estate planning. Currently, federal law addresses privacy concerns and regulates the unauthorized access of digital assets under the Stored Communications Act and the Computer Fraud and Abuse Act, which can create limitations for those attempting to plan for their digital assets. But recently, the Uniform Fiduciary Access to Digital Assets Act (UFADAA) was created and nearly half of U.S. states have introduced legislation this year to enact the Act.[6]  The UFADAA is an inclusive law that would remove obstacles that prevent fiduciary access to digital assets and would also give access to a wide range of digital assets. In California, a bill has been introduced known as Assembly Bill 691 or the Privacy Expectation Afterlife and Choices Act (PEAC). PEAC would deny relatives access to electronic information of their loved one, unless the court finds that the person had previously agreed to pass them onto a fiduciary. This bill was unanimously passed by the House of Representatives and as of September 10, 2015, it was sent to the Senate floor with the instruction that it not be voted on until January 2016 in order for further negotiation among parties and amendment.[7]

Our daily lives have changed from sending letters and keeping photo albums to emailing and using social networking accounts. While the state of the law is uncertain, technological use increases each day, emphasizing the importance of digital estate planning to carry out an individual’s wishes.

Estate planning is a highly complex area of law. If you are interested in digital estate planning or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich & Patton for further information. The attorneys at Lonich & Patton have decades of experience handling complex estate planning matters, including nonprobate transfers, and we are happy to offer you a free consultation. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

 



[1] Michael Rosen-Prinz, The Uncertain Future of Estate Planning for Digital Assets in California, 21 Cal. Trusts and Estates Quarterly 37 (2015).

[2] Number of Monthly Active Facebook Users Worldwide as of 2nd Quarter 2015, STATISTA, http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/.

[3] Evan Carroll, Sample Will and Power of Attorney Language for Digital Assets, THE DIGITAL BEYOND, http://www.thedigitalbeyond.com/sample-language/.

[4] Karen Williams’ Facebook Saga Raises Question of Whether Users’ Profiles Are Part of ‘Digital Estates’, HUFF POST TECH (Mar. 15, 2012, 5:57 PM), http://www.huffingtonpost.com/2012/03/15/karen-williams-facebook_n_1349128.html.

[5] Gerry W. Beyer, Web Meets The Will: Estate Planning for Digital Assets, 42 Est. Pln. 28 (2015).

[6] States Struggle to Adopt Uniform Access to Digital Assets Act, ARMA INTERNATIONAL,  http://www.arma.org/r1/news/washington-policy-brief/2015/04/08/states-struggle-to-adopt-uniform-access-to-digital-assets-act.

[7] Michael Rosen-Prinz, The Uncertain Future of Estate Planning for Digital Assets in California, 21 Cal. Trusts and Estates Quarterly 43 (2015).

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