“Estate Planning 2.0:” Who controls your digital assets after your death?

Donald L. Knapp, Jr.

The term “Web 2.0” has become a popular buzzword around the Internet and many digital innovations over the past decade. Web 2.0 has allowed the creation of more “digital assets” – including your Facebook and Twitter pages, blogs, and even your online brokerage account and credit card travel miles. These digital assets can be personal or business in nature.

However, the law has lagged behind the technology in this arena. There has been a rush to create social media accounts and set-up online banking and brokerage accounts – but who controls all those digital assets after you die? Do you have an “Estate Planning 2.0” strategy to fit the Web 2.0 world?

Your digital assets are becoming one of the more important – and are certainly one of the most overlooked – components of an estate plan. While it is obvious that everyone has physical assets (home, car, personal possessions, etc.), most people today have digital assets as well.  And until state and federal laws catch up with technology, your best bet to protect these possessions is through well-drafted provisions in an estate plan.

According to a recent survey conducted by McAfee, people place an average value on their digital assets of $35,000, around half of which is attributed to “sentimental” value, like your photos stored online. That amount likely does not include the value in your online brokerage accounts, if you have any. Whatever value you place on your digital assets, it is important to have a plan in place for them if you become incapacitated or pass away.

When drafting estate planning documents, such as a durable power of attorney, will, or trust, it is important to include provisions that authorize your designated representative to access these digital assets. Such provisions should also explicitly define the scope of the representative’s authority and clearly state your intentions for those digital assets once you pass away.

Because this area of the law is new and still evolving, there are limited cases interpreting such provisions. However, drafting clear provisions addressing your digital assets will provide you with additional peace of mind.

If you are in need of estate planning help, contact the experienced attorneys at Fausone Bohn, LLP in Northville, MI. You can reach us at 248-468-4536 or online at www.fb-firm.com. Our legal experts are knowledgeable about changing laws and stay up to date on this evolving area to ensure you receive the best protection for your assets.

The most recent legislation proposed on this issue was in Florida. You can read more about what lawmakers there are doing in an attempt to secure individuals digital assets after death: http://www.wtsp.com/story/news/politics/florida/2015/04/06/bill-lets-guardian-access-digital-assets-after-death/25361635/.