Estate Planning for the High Tech World
In our technology-driven environment, many of us have created “digital assets.” Digital assets include many types of things such as music, videos, medical records, financial statements, or photographs. These items may be stored on a computer hard drive, online, or in the “cloud.” Digital assets may also include accounts on social media websites, e-mail accounts, or merchant websites including credit card companies that offer rewards in the form of points that can be applied to purchase certain goods and services.
The world of digital assets can become complicated if the owner of the assets is either deceased or lacks capacity to access to these assets. It is not unheard of, for example, to receive a notice on a LinkedIn list of a person’s work anniversary years after the person has died. This is obviously an unsettling event. What can or cannot be done in these types of situations?
Digital assets are governed primarily by terms of service agreements between the owner of digital assets and the provider of services related to digital assets. Most of us have had experience simply clicking the “agree” button with a provider of digital assets, but equally, most of us do not read the extensive and complex terms of service agreement. It cannot be assumed that what is included, for example, in a terms of service agreement for Southwest Airlines is the same for Delta Airlines. Awareness of the contents of the term of service agreement for each digital asset in a portfolio will be informative about how to access a digital asset.
Both federal and state systems, including Maryland, have statutes which address access to digital assets. In general, a fiduciary – such as a personal representative or trustee or an agent appointed under a valid power of attorney document – must have authorization to have access to a person’s digital assets. Absent clear authorization contained in a written instrument, the fiduciary may run afoul of the privacy requirements contained in both the law and terms of service agreements.
Aside from knowing the terms of service agreements for digital assets, careful drafting of estate planning documents that includes language to authorize access by fiduciaries to digital assets can facilitate the job of a fiduciary in managing a person’s affairs while alive or administering an estate when deceased. In our high-tech world, such language is a must.
The Law Offices of Cynthia Lifson are located in Columbia, Annapolis, and Towson, Maryland.
This article does not constitute legal advice and should not be relied on without discussion of your specific situation with an attorney.