2. Choose the individual to have access and control of digital assets.
In a will, the individual responsible for collecting the assets of a decedent's estate is known as the executor or personal representative. The executor or personal representative should be trustworthy and reliable, and if dealing with digital assets, technologically savvy.
The relative or friend who may be an appropriate choice for dealing with the financial and tangible assets in an estate may nevertheless have little computer experience and not appreciate the significance of continuing a website's operations or the importance of maintaining certain computer files intact. For this reason, it may be necessary to name a separate individual as the "digital executor" in a will for an estate containing significant digital assets. Again, because many states have no laws in place for dealing with digital assets upon an individual's death, specific directions in testamentary documents may provide the guidance or authority for accessing and managing those assets.
In preparing for the possibility of incapacity, an individual may execute a power of attorney authorizing one or more individuals to act on the individual's behalf during his or her lifetime with respect to his or her financial, property and legal affairs. Should the agent acting on the individual's behalf in the power-of-attorney instrument be granted powers to deal with the individual's digital assets? Most states' power-of-attorney statutes have not addressed this issue. In addition, it may not be clear at this time whether provisions authorizing an agent to deal with digital assets will be recognized by the various online service providers. A review of the terms-of-service contract for an online provider may provide some guidance, but such guidance will only apply to the specific online account in question.
3. Create a plan for passing digital assets and terminating or continuing online accounts.
Certain digital assets pass through a decedent's estate while others do not. It is important to consult with an estate planning attorney to determine which rules apply. Digital assets that have sentimental or personal value may need to be specifically addressed in a will or separate writing. For example, an individual may want his or her online photo-sharing account continued and managed by a family member as a memorial. Alternatively, that individual may want the site closed and the digital images disseminated to friends and family members.
An estate planning attorney with experience in this area will advise on the best way to communicate an individual's wishes for the distribution of digital assets and the continuance of online accounts.
The importance of making provisions for the access, management and dissemination of digital assets in the context of estate planning cannot be ignored. Perhaps, as we deal with these issues more frequently in the digital age, it will be second nature to make a plan for our digital assets as we do for traditional ones. •
Laura E. Stegossi is chair of the trusts, estates and wealth planning group at Weber Gallagher Simpson Stapleton Fires & Newby. She concentrates her practice in estate planning and administration and counsels individuals and families on estate, gift and generation-skipping tax issues, business succession planning and charitable giving programs. She also represents personal representatives and trustees in the administration of trusts and estates. She can be reached at 215-972-7918 or lstegossi@wglaw.com.
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