Immortality Online: Death, Incapacity and Digital Assets

Do you email, have social media accounts, save photos online, use online banking, use streaming services, have domain names, use online paying services, or do anything else electronically?  These online accounts and electronic data are called “digital assets.”  Who controls these assets if you become incapacitated, incompetent, or die?  If you have digital assets, you should update your Will, trust and durable general power of attorney to allow your Executor, Trustee and/or attorney-in-fact to handle, protect, preserve, or even delete these assets.

If you don’t address digital assets in your estate planning documents, those assets could be in limbo when you become incapacitated, incompetent, or die.  What happens to them is determined by federal law, possibly state law, and by the companies who manage and store the assets.  Federal law may not necessarily keep pace with the digital world’s advances.

Federal law disallows any electronic communication services provider from divulging either the contents of a user’s account(s) or login credentials to others in all but a handful of exceptions (e.g., to an individual who has “lawful consent”).  Since June 30, 2016, North Carolina law allows people to use Wills, trusts, and powers of attorney to address their wishes for how these digital assets are managed during incapacity, incompetency or after death, and also to circumvent many of the privacy terms electronic service providers require when setting up an account.

Some basic things that you can do to ensure your digital assets are protected in the future:

  • Compile a written list of logins and passwords for your digital assets including, but not limited to, email, online banking, social media, etc.
  • Create and keep an updated list of all hardware including computers, cell phones, tablets, and external hard drives used to access or store your data. Keep instructions for accessing data.
  • Specify how you’d like your data (including social media accounts) to be handled after your death or during your incapacity or incompetency.
  • Update or have your Will, trust and durable general power of attorney prepared to enable your fiduciary to handle your digital assets in any circumstance.
  • If you own a business, discuss with an attorney what happens to your business’s digital assets upon a sale, transfer, or dissolution of the business.

Contact the experienced estate planning attorneys at Weaver, Bennett & Bland, P.A. to discuss safeguarding your digital assets and ensure inclusion of these assets in your Will, trusts, and powers of attorney.

Eran L. Weaver is an estate planning, estate administration and business attorney at Weaver, Bennett & Bland, P.A.  Contact Eran at Weaver, Bennett & Bland, P.A. at (704) 844-1400.  The information contained in this article is general in nature and not to be taken as legal advice, nor to establish an attorney-client relationship between the reader and Eran L. Weaver or the law firm of Weaver, Bennett & Bland, P.A.

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