I’ve written before about digital assets and the need to plan for them. What are “digital assets?” The term includes a whole host of matters, including electronic accounts, such as Facebook or email.
I recently noticed that Virginia passed legislation giving personal representatives of minors authority over “digital accounts.”
While the action by Virginia is helpful, there is a dearth of legislation in this area. It is sort of like the Wild West out there when it comes to digital assets. This is why it is so important to include language in your documents giving fiduciaries authority to access and control your digital assets. I have drafted language addressing this issue, based on my research and the feedback from Academy members. I’ve included the language in the Academy’s powers of attorney, trusts, and wills.
Let’s say that your sister is traveling in South America and nobody hears from her. A day goes by; you think her flight is delayed. Three days go by; you get concerned. A week goes by; you do not know where to turn. Without powers in the documents, it might be impossible to get access to her email. Her email might be the only link to providing clues to her disappearance…and hopefully her safe recovery.
This brave new digital world can be a scary place. All evidence of transactions, itineraries, etc., may be digital. This can be disconcerting, especially to Baby Boomers and those of older generations. Until the law in this area is fully fleshed-out, the inclusion of the appropriate language will help to allow the fiduciaries to have the appropriate access to digital assets, like we are used to them having with other assets.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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