While there have been some rumblings about handling digital assets in the probate process in West Virginia, there has been no legislation enacted to give specific guidance. Do you need a digital property estate plan? And what is digital property anyway?
What Is Digital Property?
Digital property includes your social media accounts, email accounts, online photo albums, online banking accounts, blogs, digital music, and any other digital assets, such as flash drives and information stored on computers.
When heirs and personal representatives stumble upon the passwords and access information to these assets, they often think that they have full access to modify, amend, or control said property, but do they? What happens when you die if no digital property estate plan is in place?
What Happens to Your Online Accounts When You Die or Become Incapacitated?
If your digital property is important to you, it's critical that you work with an experienced West Virginia estate planning attorney to protect those assets after you die or become incapacitated. This is particularly true given the absence of controlling law in the Mountain State.
First, in a tangled web of state laws, federal laws, and online user agreements, access to most digital property is restricted after the death of an original user. That means that a person must have a legal method to obtain access to your digital property. Simply using a decedent's password to access an account may not only violate the user terms of the website, but it may also violate the federal Computer Fraud and Abuse Act, potentially exposing your loved ones to criminal charges or civil liability.
Next, digital property often has value above and beyond its monetary worth, making it worthwhile to take steps to protect it. Certainly, some digital assets, such as domain names, may add significant wealth to your estate. But it's not as simple as looking at the financial value of your digital property. Many may have sentimental value to you or to those you leave behind. Without a proper legal method of access, your family and friends may lose access to those assets-including irreplaceable items such as pictures-forever.
Fortunately, there are concrete steps you can take today to plan for and to protect your digital assets after your death.
How to Protect Your Digital Property Using an Estate Plan
First, make a complete list of all online accounts for which you have created a profile or with which you have entered into a user agreement. For each account, list the log-in and password, as well as answers to your security questions, and keep that information in your safe deposit box.
Second, consider signing an Authorization and Consent for Release of Electronically Stored Information drafted by your experienced West Virginia estate planning attorney. This release should authorize the companies that hold your digital property to disclose pertinent information to your personal representative or the person of your choosing.
When properly drafted, this release will also authorize someone (like your fiduciary) to access any electronically stored information, the contents of electronic communications, and any other digital record pertaining to you with respect to an electronic communication service or remote computing service.
Can't I Just Use an Online Transfer Service Rather than Creating a Digital Estate Plan?
While services are available online that claim to transfer your digital assets to your beneficiaries at your death, there is no guarantee for such transfer. Even these services would have to comply with federal law, state law, and the user agreements under each individual account.
Paying for a service that cannot guarantee results can be risky - especially when you may never learn of the effectiveness of such service. With the digital age taking over at a rapid rate, the pressure will be on lawmakers to tackle this difficult issue.
The safest course of action is to contact an experienced West Virginia probate attorney with experience dealing in digital property estate planning. Whether your digital assets have significant financial value, sentimental value, or both, you can best protect them by working closely with a trusted legal advisor.
If you would like further information about the best course of action for protecting your digital property, please contact me, Anna M. Price at Jenkins Fenstermaker, PLLC by calling (304) 523-2100 or completing this e-mail contact form.