As more and more facets of our lives, professional and personal, involve some sort of digital component, it is becoming increasingly important for individuals to incorporate and account for their digital assets in their overall estate plans. Digital assets could include PayPal or other online-only financial accounts, blogs, digital photo collections, email and social media accounts, digital media, domain names, and so on.
Indiana is ahead of the curve with what can be considered the most robust statutory framework to provide for the administration of digital assets in an estate context (IC 29-1-13-1.1). This statute gives the Personal Representative of an estate the ability to request access to or copies of electronic information stored by a custodian, as defined in the statute. This request also serves to obligate the custodian to maintain the information for an additional two years.
However, since very few states have laws of this nature, and none reach so far as Indiana’s, individual companies are unlikely to willingly comply, especially if their stated privacy policies or click-through agreements are in conflict. A Personal Representative may seek a court order from the probate court, but like we noted at the outset, this is a new area and litigation on these issues should be anticipated in coming years. Similarly, the interaction between digital assets and trust law is also an unsettled area in need of clarification.
So how should you plan for your digital assets? Create a list of all of the digital assets and accounts, and the corresponding access information. Carefully consider what you would like accessed and by whom (email in particular). Keep this list as a separate document, but consider referencing it and the statutory authority (if any, for your state) in your estate planning documents. Consider designating a trustworthy and tech-savvy person to deal with these assets. Update this information regularly, and be sure that someone (or an advisor) knows where the list is located.
If you have not updated your estate in some time you should consider what digital assets you own that should be made part of your estate plan. The attorneys at Tuesley Hall Konopa have the knowledge and experience to help. Call us at 574.232.3538 to update your estate plan.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon investigation of specific facts. You should consult an attorney for advice regarding your individual situation.