One of the better definitions of digital date that I found - a digital asset can have value, can be owned, but has no physical presence.
However, there is also electronic data that has no intrinsic value, other than ‘sentimental’ value, for example a family photograph or vacation video.
If you have not read your estate plan recently, then it may be time to review the plan and make sure that your “electronic estate” is managed according to your wishes.
Some planners have even considered the option of having an ‘electronic estate trustee’ (separate from any other trustee) who would have the ability to navigate the complex digital information landscape, including its privacy laws; have the capability of using technology and be trusted with the authority to access all digital data.
If you think that you do not have digital/electronic data to protect, you might want to consider that many people retain variousPpasswords: to their banking; investments; cryptocurrency; social websites; email accounts; online payment accounts; reward programs; internet purchase sites..the list goes on.
There is accumulation of data on computer hard drives and on smartphones.
There is electronic data stored ‘in the cloud’.
Individuals retain digital photo albums; manuscripts and music.
Some of the data has distinct financial value, other data can have sentimental value to beneficiaries.
If a person is deceased or incapacitated, who among their trusted individuals would have access to the stored information. Would that trusted person have appropriate authority to utilize the data and the knowledge to access it?
The person who would be entrusted with accessing digital/electronic data within your estate plan:
1. Must know that such accounts exist- This means making and keeping records up-to-date as part of your estate planning process
2. Know the rules – Some rewards programs are transferable, some are not. Some sites allow for third party access, some do not
3. Most sites are password protected – this means keeping track of passwords and their changes
4. Different types of accounts have different rules regarding log-on and ownership. Those rules may change as the legal issues of fiduciary responsibility over digital assets evolve.
5. Crytocurrency accounts – have different access requirements. A trustee would need to know what is required.
6. Probate – may not necessarily consider all digital accounts (some probate codes are silent on digital assets)
In addition, there are issues of how to delete digital data and accounts, which is in continuing review. For example, some social accounts do allow for the ‘memorialization’ of accounts and some do not.
Some government legislation covering digital assets is encompassed in the Stored Communications Act (SCA) and the Electronic Communications Privacy Act (ECPA)
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