Where Are Our Family Photos?!? Planning for a Digital Legacy

Attorneys Sasha A. Klein, and Mark R. Parthemer have written an excellent article, published in GPSolo, a publication of the American Bar Association,  explaining how current law does not provide adequate protection of digital assets upon death of an owner of these assets. After explaining the dificiencies and difficulties presented, they posited some sage advice for the planning necessary to protect these all-to-common and valuable assets: 

What can we do now? Plan! Fiduciaries face many obstacles with respect to digital assets that do not apply to traditional assets, including password protection and encryption. Therefore, proactive planning for these assets is necessary. Clients should take two critical steps.

First, identify and create an inventory of all digital assets, which should be updated regularly. Many applications exist to help clients plan for their digital assets. For clients who change their password frequently or use many different passwords, applications such as 1Password, LastPass, and Dashlane store all passwords with access to the list through only one main password. Several third-party digital asset storage providers also act as “electronic safe deposit boxes” that release information only on the user’s death or incapacity. These allow clients to easily update information during life and grant their executor or guardian immediate access on death or incapacity. Privacy concerns exist, however, because these storage providers are targets for identity theft. In addition, this is a relatively new industry, and there are no guarantees these companies will still be in business at a client’s passing.

Second, provide the fiduciary access to the digital assets. During life, a client may wish to grant an individual the ability to have immediate access by creating an account with multiple users or appointing an agent through a durable power of attorney. If using a durable power of attorney, a provision granting access to digital assets (which could be specific to certain types of digital assets or broadly apply to all digital assets) should be explicitly included. The power should also expressly provide consent to access such accounts. Currently no states have modified their power of attorney statutes to include digital assets. In addition, a review of the TOS agreement is essential because it may trump any lifetime planning. Your client also may wish to create backup files of his tangible media through DVDs, CDs, flash drives, external hard drives, or a cloud service.

After death, a last will and testament or revocable trust can give a fiduciary access to a decedent’s digital assets. The will or trust can specifically devise digital assets and appoint a fiduciary (such as a “digital executor” or “digital trustee”) to administer the digital assets. Another option is to draft a separate letter of instruction for digital assets and incorporate it by reference into a will or trust (to the extent allowed under state law). Consider including a definition of digital assets in the will or trust (you may want to use your state’s definition if one exists or the UFADAA’s definition). Your client’s will and trust should specifically provide which digital assets are under the fiduciary’s control and where and how to dispose of them after death. Explicit directions are more likely to convince the service providers to grant the fiduciary access.

Our clients have one additional tool to solve these problems: LegalVault.^®   LegalVault^® is an advanced document storage system which allows you to:

• access healthcare directives such as a living wills and healthcare powers of attorney at anytime and any location;

• provide critical information to caregivers such as emergency contacts, allergies, medications and primary care provider details;

• store other documents such as trusts, wills, deeds, contracts, oil and gas leases, installment contracts and the like;

• store digital asset information, such as pictures, movies, songs, a list of professional advisers, and site passwords. 

Go here for more information regarding LegalVault.^®

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