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ESTATE PLANNING FOR DIGITAL ASSETS
By:   Kimberly A. Soyer
Sandra L. Clapp & Associates, P.A.

Have you ever considered what would happen to your Facebook account or email account upon your death?  Would your loved ones know the extent of your online presence?  A growing new area of estate planning focuses on your digital assets.  Are you currently scratching your head wondering what a digital asset is?  A digital asset is any online account that you may own, any file you store on your computer, or any file you store in the cloud.  Online accounts include, but are not limited to: email accounts (Gmail, Yahoo!); pictures (Flickr, Shutterfly); videos (YouTube, Vimeo); documents (GoogleDocs); websites or blogs; online banking, investment, and credit card accounts; social networking accounts (Facebook, Twitter, LinkedIn); online bill payments; online shopping accounts (Amazon); and many more.  So why is it important to make a plan for these digital assets?   How many online accounts do you have?  Would anyone other than you know all of your active accounts and the usernames and passwords for access? 

The first challenge for family members or a personal representative is finding a deceased person’s digital assets and determining whether the assets are valuable or significant. If you have numerous online accounts this process can take a substantial amount of time.  Your family or personal representative then has the additional obstacle of gaining access to these digital assets.  Fortunately, Idaho is one of very few states to have passed a law governing digital asset management after death.  In July 2011, Idaho Code § 15-3-715 was revised to add section 28, allowing for a personal representative to “[t]ake control of, conduct, continue or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website or any email service website.”  This legislation assists personal representatives in gaining access to these various online accounts.  However, even if your personal representative can locate and access your digital assets, will he or she know your wishes and desires regarding those assets?  The goal of a digital estate plan is not solely to access the digital content but to also ensure that the resource, be it your Facebook account or blog, is handled in a manner that observes your desires upon your death. 

So how do you go about creating a digital asset estate plan?  The first important task is to conduct a thorough audit of all your digital assets.  Next, it’s important to decide what should happen to these digital assets after death.  It is also important to document how to access all the various accounts.  This could be the creation of a list of all your accounts, passwords and key account information that can be shared with your attorney, personal representative of your estate, or a trusted family member.  For security purposes it is important to keep any such list in a secure location such as a safe deposit box, fire proof safe, or at your attorney’s office.  It is not a good idea to include this sensitive information in your will.  Wills that are admitted to probate in Idaho become a public document and anyone can see the contents.  There are also various online resources for controlling your digital assets on your death.  These companies provide automated systems for storing passwords and providing instructions to loved ones on how to handle your digital assets.  Estate planning for digital assets may seem relatively new, but as our lives become more digitalized it is important not to overlook this area of estate planning.

This article is not intended to replace legal advice applicable to your situation and should be used only for informational purposes.  Because of the complexity of the law, please consult with your attorney for proper guidance. 

Ms. Soyer is an associate attorney with the firm of Sandra L. Clapp & Associates, P.A. and can be reached at ksoyer@clapp-legal.com or (208) 938-2660.

 
 
 
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PO Box 2660
Eagle, Idaho 83616

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