Most of us, to some extent, live in a very digital world. We communicate by email or text. We socialize online, seek our entertainment online, manage our assets and finances online, store our photos, music, and other digital property. . .online. From our health care, to our home security, we are ever increasingly being pulled into the matrix.
But what happens to all of our digital property if we become incapacitated, or when we die? Most people don’t plan for these events. That lack of planning can cause unexpected consequences for the loved ones who are left dealing with our affairs.
Here in Wisconsin, our legislature has adopted a law known as the Wisconsin Digital Property Act. This law allows individuals to direct how their digital accounts and property will be administered by their personal representative or trustee upon their death, or managed by their power of attorney in the event of their incapacity. However, a user must opt-in to this law, which requires some proactive planning as discussed below.
WHAT IS DIGITAL PROPERTY?
Wisconsin statutes define digital property as “an electronic record in which a person has a right or interest.” This could include email and text message accounts, social media accounts, photos, videos and music, cloud-based storage accounts, bank & financial accounts, digital currency accounts, website domains and blogs, online shopping accounts, entertainment accounts, healthcare platforms, data stored on your phone or other electronic devices, etc.
GRANTING POWER OF ATTORNEY ACCESS TO YOUR DIGITAL PROPERTY
Most online user agreements permit only the user to access the information contained on the providers website, cloud, platform, or app. If a user becomes incapacitated due to an unexpected accident or health event, it may be impossible to access the information without a court order. However, the Wisconsin Digital Property Act allows a user to appoint an agent under his or her Power or Attorney document, who has the authority to access, manage, distribute, delete, or transfer ownership rights in the user’s digital property. Granting such authority to a Power of Attorney agent requires careful consideration and drafting. Be sure to consult with an experienced Estate Planning Attorney to assist you.
MANAGING DIGITAL PROPERTY UPON YOUR DEATH
Some social media and online providers allow you to use their online tool or settings to designate a person to access your account and manage your digital property upon your death. This person is sometimes referred to as a legacy contact. While this can be useful planning for some sites and platforms, it won’t begin to cover all of the digital property most people own in this digital age. Proper planning requires that these issues be addressed within a person’s estate plan. This is often accomplished by drafting the appropriate language in a client’s Last Will & Testament, or Revocable Trust document, which grants authority to the client’s Personal Representative and/or Trustee, allowing that person to access and control the client’s digital property upon his or her death. If you do not yet have your estate plan in order, or if it has been a while since your estate planning documents have been reviewed, now is a good time to be sure that you have a plan in place that will protect your digital property.
CATALOGUE VS CONTENT
When planning for your digital property, it is important to understand how the law distinguishes between catalogue and content. Take email communications for example. A catalogue would contain a log or summary about the underlying communication, which may provide basic information such as email addresses, dates and times. The catalogue would not provide the actual content or substance of the email. Because of privacy concerns, when formulating an estate plan a client should give careful consideration when determining whether to authorize an agent, personal representative, or trustee access to the actual content of his or her digital property.
KEEP AN INVENTORY
In addition to the planning discussed above, it’s also prudent to keep a list of your online accounts and digital assets, along with your password information. Update this regularly, keep it in a safe and secure location, and be sure that your trusted representative knows where to locate the information. This person should also know how to access your phone, as some accounts will require two-step authentication.
DON’T FAIL TO PLAN
Most clients overlook their digital property when thinking about their estate plan. But these digital assets often make up a significant portion of their estate, and can cause the most difficulty with administration of their affairs upon their death. Don’t fail to plan for your digital assets. Contact Kosa Law Office today to schedule an appointment to discuss your estate planning.