December 2, 2016
More and more of the way we live our daily life is conducted online. Where we once documented our lives through photo books, scrapbooks, letters, etc., now we have transferred the means of such documentation to the digital world. Where we once kept track of our financials through bank statements and checkbooks, now we simply check an app on our phone. We have transferred these assets to the digital world. Our digital assets include email accounts, social network accounts, photograph and video sharing accounts, online sales accounts, websites, blogs and other online accounts and they need to be protected and preserved just as our tangible assets do.
There is an abundance of Federal and State law that is in effect to protect people’s physical assets after they pass away. We as a people want to make sure that our houses, cars, jewelry, and other assets are left to the right people after we are gone. Generally, clients are eager to create a will and/or trust to protect their physical assets, but fail to consider their digital assets in their estate planning. As we have grown towards a more digitized world, the need for digital asset estate planning is imperative. The Law Firm of Neale and Newman has kept pace with the evolving needs of our society and are always thinking ahead for ways to further assist our clients.
So what happens to our digital assets when we pass away? This change in our lifestyle has prompted lawmakers to enact laws that account for our digital assets. The Uniform Law Commission has drafted the “Uniform Fiduciary Access to Digital Assets Act” in an attempt to bring uniformity to the issue. However, some states, including Missouri, have not enacted this statute. This could leave certain individuals with digital assets vulnerable to losing some of their most cherished assets, whether they are sentimental or financial in value. It could also leave certain individuals and estates vulnerable to identity theft after they have passed away.
There are a few federal laws such as the Stored Communications Act (SCA), the Electronic Communications Privacy Act (ECPA) and the Computer Fraud and Abuse Act (CFAA) that attempt to protect individuals from the unauthorized use of protected computers and other electronic communications. However, they can also have the effect of denying certain family members or fiduciaries the right to access their loved one’s digital assets. There are also restrictions found in some digital accounts Terms of Service Agreements that attempt to prohibit any account holder from disclosing information to third parties and prohibit third parties from accessing the accounts. Therefore, it is possible that a fiduciary may violate the Terms of Service agreements to some accounts if he or she attempts to access the account. Simply giving your account information and passwords to a loved one is not a viable option to ensure that your digital assets are protected. In fact, it is possible that you could be in violation of federal law if not done properly.
Missouri has not enacted legislation to fix this problem. Until such legislation is enacted, fiduciaries and family members must proceed cautiously, through federal laws, state estate planning laws, and Terms of Service agreements to protect their client or family members’ digital assets. The fact that there are no clear Missouri laws on the issue makes it even more important for you to contact an attorney to ensure these matters are handled appropriately.
Gather your Data
So how do we plan for the handling of digital assets? It is imperative that you take an inventory of all of your digital assets. Once you have that list, we can begin to assist you in ensuring that those assets are protected.
The Law Office of Neale & Newman has over one hundred years of experience in helping clients protect their assets through detailed estate plans. Our firm has witnessed cultural changes over the last century and has adapted appropriately to protect our clients. There are certain things that individuals might need to do to protect and preserve their digital assets post mortem. This is a relatively new area of the law that is developing day by day. However, the experienced estate planning attorneys at Neale & Newman can help each individual by looking at their digital assets, as well as any other assets they have, and helping them determine the best way to protect and preserve them, whether financial or sentimental in nature.
Please contact us to further discuss your estate plan and how we can ensure that all of your assets are protected. Our phone number is 417-882-9090.