Like most people, a primary motivation for creating your estate plan was likely to ensure that the assets you acquired over a lifetime are distributed according to your wishes after you are gone. For that plan to work as intended, all of your assets must be included in the plan – including your digital assets. A Hauppauge estate planning lawyer at the Law Offices of Kobrick & Moccia discusses digital assets and why it is crucial that you incorporate them into your estate plan.
The Electronic Universe of the 21st Century
It would be a gross understatement to say that we have all become dependent on electronics. In fact, almost everything we do now has an electronic component to it. How much of your life is now stored electronically? How many daily tasks do you accomplish electronically. The odds are good that all your communication – both business and personal – is handled via email, text, or social media sites like Facebook, Instagram, or Twitter. You probably pay the majority of your bills via an automatic electronic funds transfer or using a debit card over the company’s website. We can even split the cost of a pizza between friends or send each other money with the swipe of a finger using apps such as Cash App, Venmo, and Zelle. All of your financial and investment accounts are undoubtedly accessed online an you likely do all your trading that way as well. Whether you run your own business or work for someone else, it is always a certainty that the business has a significant online presence. In short, the number of digital assets, records, and accounts you have probably accounts for a much larger percentage of your total assets than you realized – and those are assets. Include those assets in your estate plan is crucial because failing to do so can create havoc during the probate of your estate.
What Digital Assets Do You Own?
Before discussing how your digital assets should be handled in your estate plan, it helps to define exactly what digital assets you may own. The term “digital asset” may include, but is not limited to, the following:
- Computing hardware — computers, external hard drives or flash drives, tablets, smartphones, digital music players, e-readers, digital cameras, and other digital devices
- Information or data — stored electronically, whether stored online, in the cloud, or on a physical device. Don’t forget accounts such as Shutterfly, Google photos, and other photo storage sites. For each account, make sure you identify where it is located, your user name, and password.
- Online accounts — email and communications accounts, social media accounts, shopping accounts, photo and video sharing accounts, video gaming accounts, online storage accounts, and websites and blogs that you may manage. For each of these you will also need to make a note of your user name and password.
- Financial and bill paying accounts — Checking and savings accounts, retirement accounts, trading accounts, investment accounts, utility payment accounts, credit card accounts, house and vehicle loans
- Intellectual property — copyrighted materials, trademarks, patents, and any code you may have written and own. Also, don’t forget to include any domain names that you own.
What Happens If My Digital Assets Are Left Out of My Estate Plan?
There are a number of reasons why it is important to incorporate your digital assets into your estate plan. To begin with, some of your digital assets are valuable. Others are extremely personal and you want to make sure they end up in the right hands. From a practical standpoint, the reason you want to include them in your estate plan is that failing to do so will leave your Executor wrestling with potentially hundreds of individual service agreements. You know, those click-through terms of service agreements you agreed to when setting up your Gmail or Facebook account? Those will govern your digital accounts – and there is a separate one for every digital account.
Digital Assets and New York Law
Many states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). Under the RUFADAA, a company that stores digital property may provide an online tool that allows the owner of the digital property to specify whether the user’s digital property should be disclosed to others and, if so, to whom. The law allows you to make a provision in your Will, trust, or power of attorney that either allows or prohibits fiduciary access to your digital property. New York, however, has not adopted the RUFADAA. Instead, New York passed A.B. A9910A which allows an individual to use an online tool to allow or prohibit access to his or her digital assets. If a digital account does not have an online tool, the person’s written instructions shall override any terms-of-service agreement.
Contact a Hauppauge Estate Planning Lawyer
Please feel free to download our FREE estate planning worksheet. If you have additional questions or concerns regarding the best way to ensure that your digital assets are incorporated into your estate plan, contact a Hauppauge estate planning lawyer at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.