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Palm Springs Law Blog

Wednesday, November 13, 2019

Don’t Forget to Include Your Digital Assets in Your Estate Plan

Some of the most important documents to execute during your lifetime are those that help create an all-inclusive estate plan. Having a comprehensive estate plan helps to ensure that your wishes are carried out when you are incapacitated or deceased.

While estate plans include a large number of physical assets, it should include more than just that. As technology continues to become intertwined in all aspects of our lives, it is now extremely important to take our digital lives into consideration when planning. In other words, not only should your estate plan help to determine where your physical assets should go upon your death, but also what should happen to your digital accounts, transactions, and other related assets.

What Constitutes a Digital Asset?

A digital asset is an account or online service that is password protected or otherwise secured by a log-in. This includes everything from your social media accounts and online financial accounts, to your cloud accounts and smartphone apps. As more aspects of our lives become digitized and accessible online, but password-protected, more of our estate plans will consist of assets from our digital lives.

What Are My Digital Assets?

When determining your digital assets, there are three steps that you should take:

1. Determine your inventory

You should first sit down and think about all of your digital assets as discussed above. This list should also include any hybrid digital assets, such as your IRA, as well as any digital liabilities that you may have such as automatic payments.

2. Record Your Access to Each Asset

Next, it is imperative to establish how to access each of your digital assets. This includes full names and account numbers associated with the account. This also should include any login information (i.e. usernames and passwords) and should include whether there is secondary authentication required. Lastly, this list should include any security questions and their answers so that your executor will be able to access your accounts.

3. Determine to Whom You Wish to Give Access

Finally, after you have identified your digital asset inventory and executed a list concerning how to access each asset, it is necessary to determine who you would like to receive access and what that person should do with it.

Gaining Access to Another’s Digital Assets

For a long time, it proved very difficult for executors of estates to be granted access to the decedent’s digital assets, since federal law makes it a crime to access an account that does not belong to you.

However, as of 2017, California – like many other states – enacted a new law (The Revised Access to Digital Assets Act), which allows for executors to gain access to an individual’s digital assets, after the original owner of the assets has passed under certain conditions.

California executors and trustees are now granted the right to receive disclosure of the decedent’s digital assets so long as they can prove one of three things:

  1. The decedent provided prior consent to the disclosure (e.g. Facebook’s Legacy Manager); or
  2. The decedent gave permission for such disclosure in writing (e.g. in a will or trust – or even an email); or
  3. Whether the Terms of Service that the user signed with the specific service provider allows for such disclosure (this is generally not the case).

Heritage Legal, PC Helps Those in California to Establish a Comprehensive Estate Plan

After the death of a loved one, the emotional toll is great enough, but when you add on the additional aggravation and unnecessary costs associated with an unresolved digital presence, it can make things that much worse. That is why it is in your best interest – and theirs – to consult with a knowledgeable and experienced California estate planning attorney.

At Heritage Legal, PC, we understand the importance of protecting the very things that you care about. We help you to build an estate plan that meets your needs and the needs of your family. To learn more or to schedule a free consultation, contact us today!


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