Don’t Forget Your Digital Assets

Posted by on Jul 13, 2012 in Estate Planning

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“THE LEGAL CORNER”

 By Sam A. Moak

 Don’t Forget Your Digital Assets

 The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

 Like it or not, we live in a digital world and it has changed everything.  One thing you might not think about is your digital fingerprint or assets (i.e., email, Etrader, Google, Gmail, Yahoo, Paypal, MySpace, Ebay, and Facebook accounts).  You may want to actually read the account terms and conditions next time when you set up an online account.  It may surprise you.  Yahoo explicitly states that the account cannot be transferred.  Google’s terms of service do not include an explicit discussion of what happens when the account holder dies.

 Justin Ellsworth, a soldier killed in Iraq, left a Yahoo email account his father wanted to access.  When Yahoo refused to provide access, the father went to court, and a judge ordered Yahoo to turn over the emails.  However, even in this situation, Yahoo was not required to provide access to the actual account.

 Only a handful of States have enacted laws regarding situations like the Cpl. Ellsworth case, Connecticut, Oklahoma, Idaho, Rhode Island, and Indiana.  What this means in Texas is that if you die, your loved ones will have difficulty with these online assets.

 There are a couple of web sites that offer different types of services related to this subject (i.e., Entrusted.com and Legacylocker.com).  However, these legacy services may not provide the promised solutions inherent in the concept of a digital executor.

 What this means to you is that you must include these digital assets in your estate plan.  (1)  You could execute a power of attorney that authorizes someone else to access the accounts in case of incapacity, but this will not be effective after your death.  (2)  You could transfer all your digital assets into a trust so that the trustee would have access and then upon your death, an alternate trustee would have access.  (3)  Your Will could provide that your executor has authority to access these online assets.  However, there is no guarantee the online provider will accept any of these.

 Another level of planning involves password protection and transmission.  A list of the appropriate login and password information should be made and updated regularly.  However, what to do with the list and how to save it could be an issue.  You do not want it falling into the wrong hands.  It could be saved on a CD, DVD-R or USB flashdrive or  even in hard copy.  But ensuring safety and privacy during your life, but disclosure (or Non-disclosure) on incapacity or death, can be more complex.  Where should you store the list?  Who should have access?

 Planning for digital assets requires contemplating mortality, just like drafting a trust, writing a Will, or executing an advanced directive.  Although you can develop actual plans without an attorney, an attorney who focuses on estate planning can make this an easier process and help ensure that the information you want to share after your death or disability can be, and that the information you do not want shared is not.

 Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

 www.moakandmoak.com

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