May 26, 2021

Planning for Your Digital Assets

Planning for Your Digital Assets

Planning for Your Digital Assets

As more and more of our assets have started to shift to the online world, the need to plan for those digital assets has become a priority for pretty much every individual that owns a smartphone or laptop. The purpose of this post is to provide you insight into what digital assets are and how to manage them, so your loved ones aren’t hectically phishing (see the pun?) for your digital assets.

What are digital assets?

Any online account that you own or any file that you store on your computer or that you store in the cloud. In short, assets that exist online.

Examples:

While not all these assets have monetary value, they may hold sentimental value for family members.

Why do you need to account for digital assets with estate planning?

Why create a written plan for managing digital assets?

State and federal laws make accessing computer systems or private data without permission a crime, so creating a written plan for managing digital assets provides legal protection for your loved ones.

What current law is in place?

In 2015, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was created- this is a revised version of UFADAA. This law provided better coordination with federal privacy laws, better definition of rights and duties, and legal effect to account holder/user’s instructions.

The REFUDAA outlines the definition of a fiduciary in Section 2 of the Act, “An original, additional, or successor personal representative, conservator, agent, or trustee.

i) Agent: appointed by power of attorney

ii) Conservator: a guardian appointed by a court to manage the estate of an individual

iii) Personal Representative: administrators and executors

iv) Trustee: personal with legal title to property under a trust instrument

In Section 2, the Act goes on to discuss the definition of a Custodian, "A person or entity that engages in the transmission of, maintains, processes, receives, or stores a digital asset or electronic communication of another person.”

- Think Facebook, Google, LinkedIn. The companies that actually store your digital assets.


That brings us to the main question:

If you need access to a person’s digital asset, what do you need to do?


Step #1: Search for an Online Tool

Section 4 of the Act allows the user to employ an online tool and describes this tool as, “An electronic service provided by a custodian that allows the user, in an agreement distinct from the terms and services agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.”

This tool directs the custodian to either disclose or not to disclose to a specified recipient some or all the digital assets belonging to that user. This tool overrides contrary direction in a will, trust, power of attorney.

Example: Facebook settings has a memorialization option, and Goggle has an inactive account manager option. Check these out!


Step #2: Check the Will, Trust, or Other Record

According to Section 4b of the Act, “The user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets.” This overrides a contrary provision in a terms of service agreement.


So, what if there is nothing listed in the estate plan?


Step #3: Check the Terms of Service Agreement (RUFADAA Section 4c)

Section 4c of the Act allows access of a designated beneficiary or fiduciary to a user’s digital assets to, “be modified or eliminated by a user, by federal law, or by a terms of service agreement” if the user has not provided other direction.

Example: Instagram allows you to memorialize (like Facebook) or shut down the account. Twitter will shut down the account, along with Yahoo and Apple.


What do you have to present to the custodian to gain access?

According to Sections 7-14 of the Act, the personal representative of the deceased user’s estate must provide the custodian the following:

If there is a Power of Attorney, Guardian, or Trustee:

Conclusion

Digital estate planning is a newer area of estate planning, and it is very important to discuss your wishes with your attorney and remember to review your plan to add any new digital assets you acquire. Also note that some states have specific laws when it comes to your digital assets, so be sure to familiarize yourself with your state laws.

Resources:

FPA of GA Symposium 2021- presented by Tiffany McKenzie, Attorney at Harrison & Held, LLP

https://www.thebalance.com/online-estate-planning-managing-digital-assets-4165810

https://georgia-estatelaw.com/...

Melissa Visbal, CFP®, CSLP®

Financial Planning Associate

Melissa came to Narwhal in the summer of 2018 following the completion of her master’s degree in financial planning from the University of Georgia, where she also earned her bachelor’s degree in consumer economics. Her interest in the field started with learning about consumer behavior, specifically its relation with complex moneymaking decisions. Melissa recently received her CFP® Certification in January 2021. Working with a CFP® professional can help you find the path to achieving your financial goals. Your goals may evolve over the years as a result of shifts in your lifestyle or circumstances such as an inheritance, career change, marriage, house purchase , or a growing family. Melissa is here to help you through that process. When she’s not working, Melissa enjoys cycling, cooking, and spending time with her beagle and two nieces.

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