Digital Assets and Estate Planning

February 10, 2016

Attorneys and legislators in Wisconsin are currently developing a new law covering digital assets upon death. This new law aims to clarify the issues challenging estate planning attorneys and probate courts rearding digital assets. However, this developing legislation will not solve most of the items discussed below – and most likely will create new, unintended issues with respect to digital assets in Wisconsin.

The Current Problem

In advance of this new law, it is a good idea to consider provisions regarding your digital assets in connection with your estate plan. Although these type of assets often fall outside of traditional estate planning, they are still important to address in many cases.

Addressing access to and disposition of digital assets in an estate plan can make your trustee or personal representative’s job easier. The following two steps will aid your representative or trustee understanding and carrying out your last wishes:

1. Having access to the email address(es) you used to set up accounts and passwords will be very helpful.
2. Directions regarding how social media accounts are to be dealt with following death or incapacity can be helpful. For example, should your Facebook, Linkedin or other social media accounts remain up or be deleted? Should a post be made on your favorite blog accounts that you have passed away to inform readers and other bloggers?

Lack of access to online accounts can be a real hurdle to the successful execution of an estate plan. For example, it has been reported that the wife of a deceased husband was unable to obtain a password for her husband’s Apple account without a court appointed personal representative or executor. The husband’s Apple account contained thousands of dollars worth of purchased music, apps, and movies. Access to these assets could be lost without a password or court order.

In Wisconsin, we are working on a state law to allow “next of kin” or heir at law to obtain this information without a court appointment. However, technology companies may not cooperate without a fight due to the increased risk of illegitimate persons obtaining passwords. Moreover, each company’s user agreement may take precedent over a state law or at least force a court challenge.

What Are Digital Assets?

There is no uniformly accepted definition of digital assets with respect to estate planning. However, estate planning attorneys generally consider digital assets to be accounts and items stored digitally such as photos,online accounts and music and other assets stored on computers or in the cloud, or even that novel that dad wrote on his computer before he passed away.

Digital assets could include the following categories:

• Computers, back up computer drives, smartphones, digital music and photos stored on your computers, electronic books on your computers
• Information stored in the cloud, such as icloud.com, iTunes, Google Play or on Amazon. These could include photos, purchased music and other forms of digitally stored items.
• Online Accounts for communication and social media or networking.
• Domain names (if you registered for either for business or personal use), especially if they contain your family name or have monetary value.
• Other electronically stored items such as letters, work product stored electronically, back-ups of photos, etc.

What to Do Now When Estate Planning in Wisconsin

Key Questions about Access to Digital Assets

The following are just a few of the key questions that estate planning lawyers can help you work through and answer:

• Who do you want to have access to these documents? However, how will they access these accounts?
• Have you made the password, usernames and email addresses available for these accounts? Have you written out instructions to your trustee, personal representative, spouse or child how these items are to be handled? Do you want specific assets or accounts to be transferred to certain beneficiaries?
• Should some items be deleted or should certain social media accounts stay active for friends and family to post to and stay in touch with your non-family friends and loved ones?
• Are your online photos to be given to a certain person or your Apple, Google Play, Amazon, Dropbox, Google Drive, or iCloud, assets such as movies to be given to a certain person?

All of these issues, if addressed in advance, can make the execution of your estate plan easier, avoiding a fighting over the assets. In addition, it can avoid your loved ones not knowing what you would have want done with these items.

Inventory Digital Assets

Providing an inventory of what is “out there” on back up drives, in the cloud and on computers can help your loved ones to quickly figure out what accounts you have. Even valuables like PayPal accounts can be lost if others don’t know they exist. For some people they may have significant funds in alternate online accounts or monetary type of accounts such as PayPal, BitCoin, and other such dollar alternatives. For example, someone active in online selling and buying of personal items, even cars, could have substantial assets in an eBay or other online account.

Designate Who Receives What Digital Assets

Your estate plan or written directions, depending upon the type of asset involved, can help define who is to receive certain digital assets and who is to have access to these assets. If there are significant digital assets, or assets that loved ones may fight over, addressing this in your Trust or Last Will and Testament is advisable, or at least in a written document.

Indicate Who Will Be in Charge of Your Digital Assets

Normally, your trustee or personal representative will be given control over your digital assets. However, making them aware of what assets need to be addressed, and providing them with the passwords and details on how to address these assets can make their handling of your digital assets a less stressful and less taxing process.

Your Action Plan – We Can Help

The estate planning attorneys at Wokwicz Law Offices can help update your estate plan with respect to your digital assets. Our experienced and tech-savvy team can help make the process easy for you. To discuss your digital assets and how best to update your estate plan, please contact us on 262-658-2181 or info@wokwicz.com.