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Friday, May 17, 2019

What is digital asset planning?

Seeing a skilled New York and New Jersey estate planning attorney to create an initial estate plan should be on the list of every person reaching the age of majority, regardless of their net worth. Many people erroneously believe they need to have a lot of assets or be married with children in order to need a last will and testament.

But a comprehensive estate plan also includes documents that plan for incapacity as well as death. Documents like powers of attorney that allow you to appoint trusted family or friends to handle your financial and your medical affairs in the event you become incapacitated and are unable to do so yourself. 

And while virtually all clients express the feeling of relief after finally putting their affairs in order, estate plans are meant to be changed over the course of one’s life especially because they are affected by factors including marriages, divorces, births, deaths, adoptions, business relationships, tax law changes, and more. 

The speed with which technology is changing has introduced a new wrinkle to estate planning – – one that may require older estate plans to be modified. It’s called digital asset planning. 

Digital assets are not tangible items like computers and iPhones, but rather information that is stored on those devices. They include “your email account, website, software program, cryptocurrency, credit card reward points, blog posts, Facebook and online photos, and more.” These assets represent items with real monetary value as well as those that are merely sentimental. 

Unfortunately, how (and if) many of these accounts can be accessed after the account holder has died is often dictated by the Terms of Service Agreements the holder consented to at the time the account was opened—which no one reads. Many people don’t keep an accessible running list of all their accounts passwords and access codes and even if they created one at the time they drafted their will, there would undoubtedly be additional accounts created afterwards and existing accounts with their passwords changed-- rendering the list made simultaneously with the estate plan outdated or useless. 

To further complicate things, it may be a federal violation of the Computer Fraud and Abuse Act and Electronic Privacy Act to share certain account passwords if sharing is against the Terms of Service Agreement. Also, these accounts can be hacked if abandoned. And if there are active but inaccessible business accounts—like a business Facebook page-- lack of access can have disastrous financial consequences.

However, if a fiduciary is given management control in a properly-worded trust agreement, will, or power of attorney document, they may be able to access the accounts to manage them or close them. But the language must specifically grant access to “digital assets” not simply “all of your assets”. For this reason, existing estate planning documents without such specified language may need to be updated to insert the digital asset language. 

If you need assistance with an initial estate plan or would like to modify an existing one, the estate planning experts at Merlino & Gonzalez can help you. Contact us today to schedule a consultation. 

From our offices in Staten Island, New York and East Brunswick, New Jersey, we represent clients in both states in all aspects of estate planning and administration as well as real estate law.


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