The Uniform Access to Digital Assets By Fiduciaries Act defines a digital asset as “a record that is created, recorded, transmitted or stored in a digital or other intangible form by electronic, magnetic or optical means or by any other similar means”. This broad definition allows for a wide array of personal assets to be considered digital assets, including but not limited to e-mails, photographs stored on a cell phone or laptop, an online shopping account such as Amazon, or even the “influencer” Instagram accounts with over 100,000 followers.
If an executor of an estate is unaware of the existence of digital assets owned by the deceased, the result may be that these assets are neglected in the administration of an estate, to the detriment of the estate beneficiaries.
What are some planning considerations that the drafting solicitor can consider when meeting with a client to properly identify all of their assets?
In order for an executor of an estate to access digital assets and properly administer and/or manage the asset, the executor must first know that the assets exists. After the digital asset has been recognized, an inquiry should then be made as to whether or not the client wishes to preserve the asset upon death (by allowing someone access to their digital asset), or, in certain situations, if the client’s preference is for the asset to cease to exist (such as a self-destructing e-mail account).
Once the lawyer has established the digital asset and has ascertained the client’s wishes with respect to the allocation of that asset upon death, the drafting solicitor must then turn their mind to the administrative considerations of the digital asset(s). A non-exhaustive list of administrative considerations for digital assets for the drafting solicitor include:
- Is the digital asset owned or licensed by the client?
- What is the financial value of the asset?
- What are the passwords/login details of the asset?
As the use of technology and the accumulation of digital assets in the day-to-day lives of individuals continues to rise, it is imperative that estate planning practitioners consider such assets when advising and planning for their clients.
Thank you for reading and have a great day,
Nicole Cianci
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