Vincent Gaffney

Jun 08 2016

Why Your Estate Plan Should Include Provisions For Digital Assets


Estate Planning Digital Assets

What happens to your Facebook, iCloud, PayPalTM, Instagram, Gmail, or online financial statements after your death? These are known as digital assets, and the answer can be very complicated and worth considering in your Estate Plan.

What are digital assets?

A would-be bill proposed in the Iowa legislature defines a digital asset as an electronic record in which an individual has a right or interest—not including underlying assets or liabilities (for example, online access to a checking account does not make the underlying checking account a digital asset).

Digital assets may be anything from social media accounts, email accounts, and blogs to airline miles accounts, rewards accounts, gaming accounts, or even digital payment service accounts and digital currency. A digital asset’s value can be sentimental, such as photos or correspondence stored online, or they can be quite valuable, such as a popular video blog that produces significant advertising revenue.

What happens to your digital assets after your death?

Unless you act, nothing will happen to your digital assets after your death. In fact, if you do not grant an individual specific authorization to access your digital assets, their attempt to log-in—even with good intentions—may violate federal law. To further complicate things, even with permission to access digital assets, some vendors’ Terms of Service may limit access only to the account holder. According to the Department of Justice, a violation of those Terms of Service may also be a violation of federal law. If this sounds complicated, that is because it is.

Why does it matter?

Think of all the ways you conduct your daily business online.

Everyone uses technology in different ways and for different reasons. Some may conduct important personal business transactions via their email account.  Others may store a lifetime of memories in their social media accounts. Some may be uncomfortable with the thought of their social media accounts continuing after they are gone, and others may wish to leave a loved one’s profile open as memorial to their life.

Many financial accounts offer the option of paperless statements. This choice has a positive impact on our environment.  However, many do not consider what may happen to their digital records when no one is authorized to access their email account.  A few of the many duties of a fiduciary is to collect assets and pay outstanding bills. However, without access to statements this duty may be impossible to complete. This digital convenience may turn into a major headache for those left behind.

Clarity on the horizon?

Earlier this year, a bill called the Iowa Uniform Fiduciary Access to Digital Assets Act (IUFADAA) began working its way through the Iowa legislature. After passing in the Iowa Senate with unanimous support, the bill did not make it out of committee level in the Iowa House. However, digital assets are not going away anytime soon, and this is an issue that will likely be taken up in future sessions. Similar laws were proposed or enacted in over 30 states this year. Stay tuned!

The proposed law would have provided procedure and guidance regarding who, what, when, and how a fiduciary may gain access to the digital assets of a deceased user. Such a procedure would likely provide a benefit to both users and fiduciaries. A passed law may also benefit content providers that, in the absence of legislation, must weigh the competing interests of privacy and public policy when deciding to grant access to deceased users’ information.

What can you do now?

  • Work with an attorney to update your current estate planning documents such as a will, trust, or power of attorney to authorize a chosen person to access your digital assets in order to wrap up your affairs.
  • Check the Terms of Service of your current providers. If you find provisions you do not like, shop around for other providers.
  • Participate in programs that tech companies have started to roll out in response to the problems of left-behind digital assets. For example, a social media company may allow provisions for memorial profiles, or an email provider may allow users to grant authorization for successor users to access accounts when the time comes.
  • Consider making a list of the important digital assets that you hold and keeping it in a safe place, such as a safe deposit or lock box.

Our Hills Bank Wealth Management Group has Officers in both Johnson and Linn Counties that would be happy to assist you with your estate planning needs or answer any questions you may have. Visit HillsBankWealthManagement.com and connect with a member of our Wealth Management team or call us at 1-800-889-8858.

Investment products are not a deposit, not FDIC insured, not insured by any federal government agency, carry no bank guarantee, and may go down in value.

 

Vincent Gaffney

About Vincent Gaffney

Vincent Gaffney is a Trust Officer at Hills Bank's North Liberty Forevergreen Road location. Vincent has been at Hills Bank since 2015 specializing in personal trust administration, charitable trust, estate planning and administration, and donor advised gift funds. Vincent is a Solon native and a graduate of the University of Iowa College of Law. Vincent can be reached at vincent_gaffney@hillsbank.com.


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