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Estate Planning and Your Digital Life

April 20, 2020

A recent article in The Wall Street Journal about including your digital assets in your estate planning got me thinking about how electronic files and communications are becoming integral to our everyday lives.

Just the other day I was preparing an updated will for a client who alerted me to his Delta Sky Miles account and his points in the Marriott Hotels Rewards program. Due to his work before retirement he had a lot of “points” in both programs. In order to control them in the event of his death I included specific bequests to a son and a daughter. Each was to receive one of the accounts. Without the specific bequests it likely that both Delta Airlines and Marriott Hotels would have refused to a post-mortem transfer.

Digital assets in our daily lives our often linked to email accounts. In 2017 Georgia adopted the Uniform General Power of Attorney Act. One of the innovations in the statute is to allow the principal to empower the attorney-in-fact to “exercise authority over electronic communications sent over received by the principal.” Any general power of attorney done before July 1, 2017 in Georgia probably does not address that issue.

As a practical matter the agent is not going to be able to access email or many online accounts without a password. Therefore, it is imperative that people adopt and use a password manager program. The two most highly rated programs are LastPass and Dashlane. Both programs are cross-platform solutions with versions to run on your PC, your cell phone and your tablet computer. The estate planning angle is that the manager requires one “master password” and that password can be written down and appropriately hidden somewhere at home for the agent in the event of incapacity, or the executor in the case of death, to locate and use.

All those photographs stored electronically in the “cloud” are going to be easier to retrieve if the necessary information as to their existence and the web sites involved is put into that password manager.

Did you know that the eBooks that you have purchased from Amazon for reading on a Kindle, iPad or phone don’t really belong to you the same way as a hardback copy does? In the event of the death of the account holder, Amazon’s current Digital Rights Management agreement does not authorize the transfer of the license for the eBooks as part of your estate. So it might be wise to have at least one device that has copies of the library you want to keep for the indefinite future, even beyond your death. The same might apply to any music library that is cloud-based. Over the years a person could put a lot of money into a collection of books or music that could vanish into the ether in the event of death.

I am not a big user of Facebook but I do know some people who seem to devote a great part of their lives to an online existence there with a network of friends and family. Anyone who does should look at what is the deal on archiving any of the information on Facebook and how long a Facebook account can be kept “alive” after the death of the owner.

One last thing about your digital existence could enable you to create history. Some people have art collections or family heirlooms on the walls, or on the mantlepiece in the living room. The story behind such items could be preserved by the simple technique of a walk-through with a running commentary – all recorded because of the video capability of your cell phone. An old rocking chair may be more of a keepsake if the family knows that great-grandma used it to rock her firstborn to sleep. The picture of the good-looking young man from the 1930's should have some “caption” to indicate that it was a great-great-uncle photographed before he went to a war from which he never returned.

One’s electronic life should be integrated into the real world. Living in the present is a pretty shallow existence when there is no perspective from the past and no plans for the future.