Will technology change how you save your digital assets?


When I was growing up, one of our favorite things to do as a family was to set up the TV dinner tables, the slide projector and pile onto the couch to watch a show of our most recent exploits. There were always laughs and tears at the embarrassing photos Dad put on that seemingly giant white screen using his fancy new and expensive projector. The family memories we created were priceless.

Now, nearly 40 years later, the house is up for sale, my Dad has nearly 1000 slides and about 40 photo albums of irreplaceable memories that have gathered dust, are fading and take up quite a bit of space.

And do you remember when video cameras were the rage? With the advent of technology, even transferring those slides and photos to digital records on CDs and thumb drives is becoming outdated technology. And the issue really becomes whether the machines used to access that technology, a slide projector, a DVD or blue-ray player or even a desktop computer will be available to look at all those family pictures, 10, 20 years from now. In fact, there have been some recent articles that Apple is developing technology that will soon make the iphone obsolete. So how would one access the ‘cloud’ then? But is the solution to take copies of those old-fashioned pictures and slides and get them on the cloud? And at what cost? And what if the password to the cloud account gets lost?

When you created your estate plan, the fate of your personal family photos, e-mail, Facebook and other online accounts probably wasn’t your top concern. But if you haven’t made plans for your digital assets after your death, now is the time to take action.

In 2017, the New Mexico Legislature, passed the Revised Uniform Access to Digital Assets Act (RUADAA) that greatly increases individuals’ ability to control what happens to their digital assets after they die. Most other states have similar laws. So now, there’s no excuse for letting your precious online photos and witty blog posts pass into oblivion.

According to Kiplinger’s Retirement Report Senior Editor Eleanor Laise, “Your digital property likely has more value than you think. In addition to the sentimental value of family photos or videos stored online, there may be significant financial value in any domain names you own, PayPal and eBay accounts, or a novel you wrote on your home computer.” But planning ahead is the key which means creating a list of user accounts and passwords, or your digital assets will be gone forever.

The new state laws create clear rules that govern whether your executor can access your digital property. Previously, online service providers, such as Apple, could choose to turn over a person’s digital assets after death or not but a significant amount of litigation has cleared the path forward.

To determine whether a Personal Representative or Digital Representative will have access to a digital asset after the user’s death, the new uniform law takes a three-tiered approach. First, the instructions you leave in a service provider’s online tool take precedence over instructions in your will or elsewhere. Google, Apple and Amazon all tout the use of “inactive account managers” or “legacy contacts” but trying to get on your accounts to find these services is next to impossible – in fact, when I tried to get on Google, the link was broken for over a two-week period. Ensuring that link is still working five, ten or twenty years from now seems highly unlikely.

If you don’t leave any instructions in online tools, then your will or estate planning legal documents govern who gets access to your digital property. And if you leave no instructions at all, the service provider’s terms of service (think, Safari, Google and Apple) will be in control. In some cases, that means it may be difficult or impossible for an executor to access your digital assets.

Sometimes the old-fashioned way is best

To ensure your wishes are followed, avoid the online tools altogether, and make sure your paper documents spell out your wishes. For example, if you wish for your Representative to full access to the content of your email communications, you need to specifically grant access to that specific asset or your family may only receive a log of the emails rather than the content.

Create a roadmap of your digital property for your executor and other heirs who will be accessing your accounts. But do not include user names or passwords in your will, which is a public document. Instead, a three step process is

recommended: First, your will should name your representative; Second, in your estate planning portfolio, direct your representative to a separate document listing your digital assets and user names; Third, leave a list of the corresponding passwords somewhere that’s more secure such as file on your computer. Another alternative to the list of passwords in a file in your computer is using a password manager such as LastPass or Dashlane. These free services store your passwords, fill them in automatically when you’re logging in to an account and help you generate more-secure passwords.

Or the final alternative is to dust off those photo albums, scour the garage for an old projector, heat up that popcorn and invite the family over for a slide-show!

Finding solutions for all your estate planning needs is the goal for me at the Foster Legal Advisory Group. If you want to make sure your family has legal access to all your digital as well as your family assets, make sure you schedule a free consult with me today!


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