November 13, 2020

Consider Digital Assets in Planning Your Estate

by Andrew Marvin, Esq., Carlile Patchen & Murphy LLP

As our level of reliance on digital mediums in our daily lives increases, the need for fiduciaries to access digital assets is more important now than ever.

Under Ohio’s Revised Uniform Fiduciary Access to Digital Assets Act (ORC §2137), a fiduciary has the general authority to access and use the digital assets of: (1) a principal under a power of attorney, (2) a decedent under a last will and testament, (3) a trust under the terms of such trust and (4) a ward under guardianship.

Digital assets are assets existing in electronic format that have an associated right of use. Digital assets often carry sentimental and/or financial value and contain important personal information (e.g., an email account containing electronic bank statements or a cloud storage account containing photographs and important documents in electronic format).

Though it is important to appoint fiduciaries that can access digital assets, it is equally important that such fiduciaries have the ability to access, manage and terminate digital assets without unnecessary burden. It is wise to provide a fiduciary with an inventory of digital assets and associated passwords and/or login information. Having such information in a safe location along with other estate planning documents will give a fiduciary a more efficient means of dealing with digital assets.

Certain companies are now providing their users the option to decide who may access digital assets upon a user’s incapacitation or death (e.g., Facebook allows for designation of a “legacy contact” and Google allows for designation of an individual to access an account that has been inactive for a designated period of time). Though this practice by companies is welcomed, a complete estate plan should include a strategy for dealing with digital assets upon incapacitation or death. In the absence of such plan, digital assets may be permanently inaccessible or a court order may be required to allow access to the assets. As our lives continue to be less dependent on tangible items, so too should our estate plans.


Marvin
Digital assets often carry sentimental and/or financial value and contain important personal information (e.g., an email account containing electronic bank statements or a cloud storage account containing photographs and important documents in electronic format).