02 Oct

Digital Hoarding and Estate Planning

Ashley Molson

You and I are Hoarders… Yep… I said it.

How many photos do you have on your cell phone right now? How many times have you backed up your photos? How many external hard drives do you own?

Lets face it. We all hoard digital assets and we probably have more than we know of. I try to go through a purge of my personal files at least once a month, but every day I am accumulating more and more files.

Recently, files such as our digital photos have been considered legal assets for the purpose of estate planning.

For hundreds of years, legally, personal property has fallen into the categories of tangible and intangible assets. Due to the development in technology, a new subdivision of personal property has emerged. This category is labeled “digital assets.”

Digital Assets? My photos are assets? YES! IN a nutshell, you can create a subsection in your estate plan to secure that your digital photos are in the care and custody of a loved one.

As of yet, there is no clear definition of what fits into the digital asset category, but I am writing this blog to help explore what might be included.

Some experts say that intellectual property can be considered. Others say that our online subscription accounts can be considered assets as well.

As technology continues to develop and more and more of the people seeking an estate plan are users of technology, digital Assets may represent a sizable portion of the estate. A survey done by McAfee, Inc. revealed, “The average perceived value of digital assets for a person living in the United States is $54,722.” McAfee Reveals Average Internet User Has More Than $37,000 in Under protected ‘Digital Assets’, McAfee.com, Sept. 27, 2011 (the $37,000 figure is the global average).

Most estate planners have perfected techniques used to transfer types of property that have been around for a long time, but most estate planners have not figured out how to address the disposition of digital assets.

This is understandable! We are not really sure how to classify and what to do with these digital assets.

Digital assets can be classified in numerous different ways, and the types of property and accounts are always changing. Clients may have to make different plans for each, such as: personal, social media, financial Accounts, business Accounts, domain names and blogs and loyalty Program Benefits.

Individuals who are prudent about their activities online have many different usernames and passwords in order to secure their identity, but their devotion to protecting sensitive personal information can wreak havoc on families upon incapacity or death.

The rights of executors, agents, guardians, and beneficiaries with regard to digital assets are unclear. The family members may have to go to court for legal authority to gain access to these accounts. Even after gaining legal authority, the company running the online account still may not acquiesce to a family member’s authority without a battle.

Planning Suggestions

  1. Back up personal assets such as photos and materials
  2. Prepare a comprehensive inventory of the Digital Estate
  3. Power of Attorney over digital account access
  4. Provide a family member information that would give them immediate access to some digital assets or an authorized agent
  5. Determine whether the assets can be placed in a trust or a will

Unresolved Issues

Federal law is uncertain as to whether giving access to a fiduciary or a family member to online accounts is prohibited.

Federal law is also uncertain as to whether the fiduciary or family member can request the provider of an online account to disclose certain records.

Conclusion

Even though complications surround the planning for digital assets, all clients need to understand the ramifications of failing to do so. Attorneys also need to comprehend fully that this is not a trivial consideration and that this is a developing area of the law.