Estate Planning for Digital Assets

DEATH, DISABILITY, AND DIGITAL ASSETS

Long ago and far away, social media and digital assets did not exist. Now, everything from our friendships to our bank accounts are managed electronically. And, up til now, it has been a nightmare to navigate digital assets when someone has died or become incapacitated.

Prior to January 1, 2017, ownership and access to digital assets such as social media, music, gaming, and shopping accounts were governed by the site’s policies. Each site may have completely different terms of service. If the site’s terms said that the account ended with the death of the holder, that was it. Information and assets were lost and could not be retrieved (often resulting in a windfall recovery for the site). However, California has enacted The Revised Fiduciary Access to Digital Assets Act, which changes everything.

Under the Act, there is a three-tiered approach to ownership of digital assets:

1. An individual may use an “online tool to direct the custodian to disclose to a designated recipient, or not disclose, some or all of the user’s digital assets.” An example of this would be Google’s “Inactive Account Manager.”

2. If an individual does not use an online tool, instructions contained in a will, trust, power of attorney, or other document may allow or prohibit access to digital assets.

3. Finally, if neither an online tool nor estate planning directives exist or apply, the custodian’s Terms of Service will govern disposition of those assets.

It is critical that each person set forth their directives over digital assets. To prepare, they should:

1. Compile a list of digital assets with a description of the assets kept in each account.

2. List the user name and password associated with each asset.

3. State who should have access to the asset upon death or incapacity.

4. List who should inherit the asset upon death.

5. And, update the asset list annually.

Please contact us for more information or for assistance with preparing your Digital Asset Directive.

Acuña Regli provides expert services within the four corners of family wealth transfers: Estate Planning, Probate and Trust Administration; Conservatorship and Special Needs Planning; and, Inheritance Litigation. We are also available to counsel our clients and to refer them to competent, qualified attorneys who can help if they need further, specialized help. ContactUs@AcunaRegli.com or call (925) 906-1880.