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Tax Law Blog: Do My Estate Planning Documents Need to Have Special Language to Deal with My Digital Assets? - December 26, 2013

This is the final post in a four-part series about Digital Assets and estate planning. Read part 1, “What are Digital Assets”, part 2, “Do your Digital Assets have Value?” and part 3, “How to Maintain Records for your Digital Assets”.


One would think that an executor, trustee, or agent under a Power of Attorney would have authority to obtain information about your digital assets and to obtain access to those accounts in case of your disability or death.

 

There are several potential obstacles to that logical conclusion, which include:

  • Federal and State Laws enacted to protect your privacy, to prevent cyber-theft, and to increase security for your computer accounts do not recognize a general blanket authority.  In fact, in some circumstances it may be unlawful for an agent to access an account even if the agent has access to the username and password.
     
  • The terms of service on many accounts do not authorize an agent to act on behalf of the account owner.  And in some instances, the authority to access the account would only grant the right to receive information, not to use the account, such as to post on a Facebook page.
      
  • Most states, including Iowa, do not have laws that specifically authorize an agent to access accounts. A group of experts is working on a Uniform State Law called the Uniform Fiduciary Access to Digital Assets Act.  This Act will be considered for passage in most states in the next few years and it is likely that most states will enact this Uniform act or something similar to it.

Accordingly, we are now adding language to wills, trusts and financial powers of attorney specifically granting agents, executors or trustees access to clients’ digital assets. This is an area that is changing very quickly, but it is a good idea to include this language when updating your estate plans.

For more information on Digital Assets, please consider the following sources:
Evan Carroll and John Romano, Your Digital Afterlife, New Riders, Berkeley, California, 2011., http://www.yourdigitalafterlife.com

James D. Lamm Website and Blogs: http://www.digitalpassing.com