Even if you haven’t thought about your estate plan today, I am certain that you have checked your email, made an online bill payment, or logged into your Facebook, Twitter, or LinkedIn account. That’s just how the world works these days. But would it surprise you to learn that new legislation is making these “digital assets” a part of your Probate Estate, too?
Digital assets are defined as any online accounts that you own, or any file that you store on your computer or in a cloud drive. While many of these assets have no monetary value whatsoever, they often have sentimental value to family members. And lawmakers across the nation are increasingly coming together to hold that the family of a deceased person has just as much right to the digital assets of their loved one as they have to his/her other property. Existing laws give us certainty when it comes to distributing the real property, personal property, and even the mementos and photographs that our loved ones once stored in shoeboxes, but it gives us no direction at all when it comes to distributing a person’s digital assets… until now.
In 2011, Oklahoma became the first state in the nation to consider legislation concerning digital assets. Driven by a lawsuit and a two-year legal battle that eventually ended in a bereaved mother being granted access to her deceased son’s Facebook account, the Oklahoma law makes it possible for an appointed representative to close or control digital assets in the same fashion as any other property the decedent owned.
Nebraska is now reviewing similar legislation, and Oregon appears to be next in line to take up the issue. It is likely that the Oregon law will add a “virtual instruction letter” component to legislation that otherwise mirrors the Oklahoma statute. The instruction letter would act similarly to distribution lists that Michigan residents often keep with their Wills and Trusts, but would include online passwords and give instructions for handling accounts after death or during periods of incapacity.
So what does this mean for you? Maybe more than any other property you own, digital assets require special consideration as they relate to your estate plan. The special pictures, letters, and journals that you once kept in shoeboxes or albums, are likely stored on computers or online today—often never being printed. If your personal representative is not given direction and access to your digital assets, that priceless multi-generational family photo might never be seen again. Without online passwords, a Power of Attorney alone may not be enough for your agent to pay your expenses when you become incapacitated and need it the most. And as one bereaved Oklahoma mom recently discovered, sometimes it’s your loved one’s social media accounts that are the most valuable assets of all.
For more information about your digital assets or any other estate planning needs, speak with the knowledgeable attorneys at Shinners & Cook today.