All of us spend increasingly more and more time on computers, smart phones and on multiple online sites where we communicate with our family, friends and work colleagues. Perhaps you shop, pay bills, bank, manage investments, create and share information, photos, images and music, and enjoy other recreational pursuits online. All of these communications, contacts and accounts, and even the fact that you use these sites, make up your digital life and are your “Digital Assets.” And it can be a great tool to help with your Estate Planning.
The following information comes from the book “5@55: The 5 Essential Legal Documents You Need by the Age of 55″, written by Grimaldi & Yeung Partners Judith D. Grimaldi and Joanne Seminara.
These Digital Assets may be saved blogs and photos, frequent flier credits and other items of value, such as domain names that could have monetary value. Digital assets, such as photos, have sentimental value and historic family records may be even more important to you and your loved ones, especially in the event of sudden death.
Therefore, you need to provide a way for these assets to be catalogued, accessed, managed, protected, “given” to others and/or deleted if you die or become disabled.
Your Will and/or Trust and Power of Attorney needs to contain special language which gives your Executor and/or Trustee and the agent named in your Power of Attorney access to your Digital Assets. Without this special access language, these persons who are your agents may not have access. That is because Digital Assets are subject to the Term of Service (TOS) Agreements the providers of these sites (i.e. Facebook, Google, American Airlines, LinkedIn, etc.) impose on all users. Remember that box you are forced to check when you “log in” to a new site, stating that you agree to certain terms and conditions of use? These TOS agreements can restrict access to your Digital Assets by others, even if they are named as an Executor in your Will or your Power of Attorney agent. The special language provided in the documents our firm prepares for you, allows for this access by persons you have chosen and can override these site restrictions.
We have provided you with a copy of a “Digital Diary” booklet for your use as a way to provide your trusted agents with complete and updated information about the electronic sites you now use or will use in the future. We urge to fill in and regularly update this easily amendable Digital Diary. The Diary can catalogue all of your electronic sites, listing each site’s user name and password for you and your trusted agent, Executor or Trustee. They will be able to access the information on these sites if you become disabled or die.
This Digital Diary may be accessed as a downloadable, fillable form on our website at www.gylawny.com. We suggest that you download it, fill it in and amend it every time there is a change in your online sites or information needed to “log in” to each site. Print, and as needed, replace a paper copy of this Digital Diary and retainer it in a safe location known to one or more of your trusted agents, and perhaps a spouse, partner, child or friend. The information in your Digital Diary should not exist solely on your computer. If you bank on-line it is important that your agent or fiduciary know about the existence of your bank accounts or other monetary assets so that these assets may be used (as needed) to pay bills, and to avoid interest and penalties.
Please think of the Digital Diary as a starting point for creating your own unique catalogue of your electronic information. If the Grimaldi & Yeung Digital Diary does not meet all your needs, we encourage you to tailor it by adding categories of online sites or information that may be particular to you. For example, if a site requires you to answer security questions when you log in, you may wish to add the answers to these questions to your Digital Diary. If you trade in Bitcoin or are involved in certain types of on-line activity for business or entertainment you may need to add more information to your Digital Diary.
We will not retain a copy of your Digital Diary in our files and you do not need to provide us with a copy of same. We urge you to safeguard your Digital Diary as you would any other precious asset so that it does not come into the wrong hands and create a risk of fraud or identity theft.
Please Note and Consider:
- Several on-line sites allow you to designate a person to access your account by registering that person with the provider. You can provide the on-line provider with specific directions regarding the identity of persons who are allowed to control your on-line presence. You may also be able to provide additional directions regarding the access to your account. This registration of a person for access or control will override any designation provided in your Will, Trust or Power of Attorney.
- If you become disabled or die and an on-line account becomes dormant because its existence is unknown to your agent or fiduciary or he/she is unable to access it, this account may be vulnerable to identity theft.
- If an Executor or agent is unaware of a bank account because he or she finds no paper record of said account, the funds in the account may be unknowingly lost and sent to New York State to be held as “unclaimed funds.”
Contact us at Grimaldi & Yeung LLP with your questions and ask for your free copy of the Digital Diary or download it now at www.gylawny.com. We look forward to hearing from you and helping you safeguard your digital life.
GRIMALDI & YEUNG LLP:
Brooklyn and Manhattan Offices:
This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.