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Digital Estate Planning

Given the prevalence of technology in our everyday lives, most people, regardless of age, will develop a significant online presence in the form of digital assets. Digital assets are electronic personal property that include email, webmail, videos, digital photos, online businesses, financial accounts and documents, websites, blogs and social networking accounts such as Twitter and Facebook. Like other assets, digital assets are among the possessions of the deceased that should be dealt with by an estate trustee in the administration of the estate.

Because digital assets are not tangible assets and often do not have any monetary value, they are generally overlooked in the estate planning process. But, unless tracked in some way, it is possible that your estate trustee will never become aware of a particular digital asset. It is also possible that your estate trustee will be unable to gain access to online banking accounts or email accounts that were an integral part of your daily life and which were interconnected with other estate assets having financial significance to you prior to your death. For example, unless access is provided to the estate trustee for an online business, orders and payments from customers could continue to flow to the business until access can be granted. Accessibility can be affected by the privacy terms that formed the basis of the original agreement between you and the provider. The result may be that the estate trustee will be denied access to your online accounts. This may happen even if a court, through the process of probate, has confirmed the estate trustee’s appointment. This issue of access may lead to unnecessary costs for the estate and may delay its administration.

To help avoid some of these issues, you should keep detailed records of usernames, passwords and account information for the various electronic outlets that are used on a daily basis. You can go further with your digital estate plan by leaving your estate trustees with a statement of wishes as to how each digital asset is to be dealt with upon their death. For example, some social media sites like Facebook allow your page to be memorialized on your death. Unless you provide some direction about how the Facebook account is to be dealt with, it will be up to the estate trustee to decide. This can give rise to conflicts among your family if some members prefer that the account is shut-down for purposes of closure, while others like the idea of keeping the profile active as a sort of legacy.

For digital assets such as e-books, blogs, videos and software that are authored by you prior to your death, poor planning regarding the final disposition of the assets can also create conflict amongst your family as to the rightful beneficiary and may expose the online works to potential content theft due to the discontinued online management of the work. You may even wish to consider appointing a digital asset trustee, who will be responsible only for the care and management of this type of online content. Among the responsibilities of the digital estate trustee would be to see to the distribution of the digital assets or any earnings of the digital estate as indicated by you in your Will.

The estate planning process is all about ensuring that you have indicated your wishes regarding the orderly disposition of your assets upon your death. Digital assets have become a large part of our lives and should not be overlooked in your Will.

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This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.

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