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 as we noted at the outset, this is a new area, and litigation on these issues should be anticipated in the 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.
Author: Adam S. Russell is an estate planning attorney at Tuesley Hall Konopa, LLP. Practice areas include trust and estate planning, estate administration, tax planning, charitable planning, and charitable trusts, trust funding, special needs trusts and supplemental needs trusts, prenuptial agreements, and probate. Additionally, Adam is licensed to practice in both Indiana and Michigan and regularly meets with clients in our South Bend, Elkhart and Cassopolis offices.
You can contact Adam by calling 574.232.3538 or by email email@example.com.