Estate Planning in the Digital Age
If you have an estate plan, it has all of your physical assets covered. But, do you have a plan for your non-physical assets that are stored electronically? If you’re like most people, the thought hasn’t even crossed your mind, but we must have a different approach for estate planning in the digital age.
New laws are bringing this issue to light, as it is now legal to have a last will and testament that is completely electronic (an E-Will) in Arizona, Nevada, and many other states. While I am a big fan of technology and innovation, I am not recommending or endorsing E-Wills because they don’t currently provide added value for most of the general public.
The Problem with E-Wills
To be valid, an E-Will requires two witnesses just like a paper will. To make it self-proving, the E-Will requires an electronic notary. Presently, it is easier for most to find and use non-electronic humans to serve as the witnesses and notary. The E-Will includes an additional requirement of a qualified custodian, which is a company that stores the will and guarantees that it hasn’t been altered.
With a paper last will and testament, the original must be submitted to the probate court but you don’t have to prove where it was stored. Some attorneys will store the original will in their records, but this is often done to secure repeat business as their services would be needed upon the death of their client. These tend to be the types of what I call “old school” lawyers who don’t believe in customer service, so this practice doesn’t benefit the client. I believe in empowerment and that you should maintain your original documents and decide where to store them.
This issue of will custody leads to the questions: What company would you trust to store your E-Will? What if they aren’t in business at the time of your death? How secure will your data be? Is there a backup if they lose your data? Modern estate planning in the digital age brings both advancements and new problems to the surface.
Controlling Your Data
While the E-Will laws may be more important in the future when technology progresses, the law that defines digital assets has had much greater impact on modern estate planning by creating the right to control how your information is handled. The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) defines digital assets as: Your information that is stored electronically. It is my recommendation that you take advantage of this law and control what happens to your data.
You may be thinking, “All of my bank statements are paper. I don’t own a computer or smartphone. So, I don’t have any digital assets.” However, I can assure you that your bank is keeping electronic records of your information, therefore you have digital assets.
Digital Asset Planning
At a minimum, I recommend you give the people named in your estate plan (trustee, agent, personal representative) the power to access an inventory of digital assets limited to the type of bank account, value, legal owner(s) and beneficiaries. This is what they will need to manage your estate, and should be a requirement for estate planning in the digital age.
I also recommend you give your trustee the authority to access a list of emails. This is done in a Digital Asset Trust. After death or disability, your successor trustee needs to know what assets you have. In my experience, many people struggle to find this information. The old way to figure it out was to receive your mail and see what statements come. This is slow and, today, this information is more likely to come by email. The Digital Asset Trust directs the custodian to provide a list of your emails (no access to read the content).
My final recommendation: Plan for media that is stored electronically. If you take pictures on your phone or have things stored on your computer, do you want them to survive beyond you? For iPhone users, the Apple Terms and Conditions states “unless otherwise provided by the law”, there is no rights of survivorship—meaning your media dies with you. If you want it to be a legacy that you pass on, you have to make a plan for it. My personal Digital Asset Trust provides for family videos stored on my YouTube Channel to be copied to my children, as well as how to handle my media on Google Drive.
Technology makes it easy to create memories. Imagine what our ancestors did just for a photo! So, take that selfie because your loved ones will want to see it. Just make sure you have a way to transfer this information with an estate plan for the digital age.