Arizona Attorney - March 2013

REX M. ANDERSON practices in the area of estate planning. He helps clients develop comprehensive estate plans through the use of wills, trusts and other planning tools.

www.digitalassetadvisors.com

STEP 4. Selecting a Digital Fiduciary.

The personal representative or trustee selected by the client to manage his or her estate in the event of disability or death may or may not have the technical skills or understanding of Digital Assets sufficient to administer Digital Assets effectively. The client may want to consider what skills and knowledge level will be needed to administer his or her Digital Estate based on the size and extent of the client’s digital footprint. Family members, friends or associates may be in a unique position to assist the client’s personal representative or trustee with regard to the client’s Digital Estate.

Preparing a list of “digital fiduciaries” that the personal representative or trustee can turn to may significantly streamline the administrative process.

Definitions

“Digital Assets” in this context means ( 1) intangible or tangible items that are
stored digitally on “Hard Goods,” and such assets include information, financial
records, rights to income, passwords, bank accounts, personal memorabilia,
The categories of these Digital Assets include ( 1) email accounts, ( 2) financial accounts
that are accessible only online, ( 3) information contained in programs such as Turbo Tax or
Quicken that may be stored in the cloud, ( 4) online bill payments that can only be paid
online (such as mortgages), ( 5) online businesses ranging from simple Ebay businesses to
web-based businesses, ( 6) PayPal accounts that may have stored value, ( 7) web pages and
blogs that contain ads that generate revenue for the estate, ( 8) social networking accounts,
( 9) registered domain names held for sale, ( 10) intellectual property of the decedent that
may only be stored digitally (such as mp3 files), and ( 11) video games and virtual worlds
where stored value may exist through currency conversion or from assets that can be sold
out of those games.

This list of Digital Assets scratches only the surface of the many different kinds of digital property.

STEP 5. Provide Instructions.

Providing instructions for management and
distribution of Digital Assets involves poten-
tially balancing contract (license), property
and probate law. Estate planning should
include consideration of:
• Instructions for account access
• Notifications in the event of death or
disability
• Instructions for continuing or closing sites
• Realizing Value for Digital Assets with
financial value
• Determining Do Not delete items
• Bequeathed information
• Coordinating beneficiary designation in
wills or trusts

“Hard Goods” are the physical devices or equipment that digitally store or contain the client’s or decedent’s Digital Assets.

“Cloud” means a network of computer servers or Hard Goods and related software owned, managed and maintained by a third party.

Entrustet, Legacy Locker, and Datainherit that are attempting to provide plans and systems to handle digital asset transfers. We will see over the next few years how well these services will fit into our system of contract, property and probate laws. For now, these sites and the services they provide are untested, unproven, and may not be financially stable to “outlive” the people to whom the information is entrusted.

Clients will need to work closely with
their estate planning attorneys to assure that
proper authority is given to appropriate fidu-
ciaries who have tools and knowledge of
Digital Assets to identify, secure and distrib-
ute those assets.

STEP 6. Give Appropriate Authority.

There are a number of commercial sites such as

Conclusion

Digital Assets are here to stay. Estate and probate practitioners must incorporate Digital Estate planning into their practices to better serve clients and ensure that all digital due diligence has been properly performed as a part of their law practice management. AZ AT

endnotes

1. Kelly Greene, Passing Down Digital Assets, WALL STREET J. (Aug. 31, 2012), http://online.wsj.com/ article/SB100008723963904 43713704577601524091363 102.html.

2. Craig Blaha, Over 30 Million Accounts on Facebook Belong to Dead People, TECHNORATI

(Mar. 7, 2012), http:// technorati.com/technology/ article/over-30-million- accounts-on-facebook.

3. For a detailed listing, see, e.g., Deceased Account, http://deceasedaccount.com (last visited Dec. 28, 2012).

4. Drafting Committee on
Fiduciary Access to Digital
Assets, Uniform Fiduciary
Access to Digital Assets Act,
National Conference of
Commissioners on Uniform
State Laws, Nov. 2012.

Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208 (2004); Allan D. Hankins, Note, Compelling Disclosure of Facebook Content Under the Stored Communications Act, 17 SUFFOLK J. TRIAL & APP. ADVOC. 295 (2012).