Wise estate planning should take into account digital assets

McAfee reports that a global study asked consumers to assign values to digital assets such as photograph libraries, entertainment files and personal information which is stored on and/or readily accessible via computers, tablets and smartphones. According to the study, consumers placed an average value of over $37,000 on the digital assets they own. In the United States, people valued their digital assets at nearly $55,000. While digital assets can undoubtedly be valuable, utilizing estate planning to pass such assets on to one's intended beneficiaries is a relatively new phenomenon. Illinois is one of the vast majority of states which has not enacted comprehensive legislation pertaining to the disposal of digital assets following one's demise.

Maria Perrone, author of the scholarly article "Estate Planning of Digital Assets," writes that digital assets range from email records and electronic bank accounts to social media accounts such as those on Facebook, Tumblr, Flickr, Twitter and YouTube. Digital assets would also include word processing documents, audio and video files, and photographs stored on laptops, mobile devices, tablets or in the cloud.

Some digital assets would clearly be part of an estate and could be passed to your intended beneficiary. For example, websites that are registered to a decedent are potentially valuable assets. Other digital assets are more problematic. As pointed out in a recent Marketwatch article, disposing of some on-line assets could be complicated in that they are often governed by terms of service agreements which "limit access to account information to authorized users" and might actually terminate upon the user's death.

Ms. Perrone observes that the question of who is entitled to access email accounts following the user's death could be a thorny problem. The family of a decedent who dies intestate might desire access to the decedent's emails. Email providers may take the position that they are obligated to protect the user's privacy rights-even after death. Indeed, there are privacy concerns given that some people share intimate details of their lives via email or various social media accounts. If a person were to die intestate, the issue arises as to whether the next of kin should acquire the right to pour over the details of the decedent's on-line personal life.

Reasons for estate planning

An American Bar Association magazine article concluded that there are several good reasons why one should take into account digital estate planning. First and foremost is ensuring that the asset holder's wishes are respected with regard to the disposition of his or her assets. The second reason is to protect against the increasing problem of identity theft. If the digital consumer dies, he or she can no longer monitor his or her accounts. Third, items such as photographs might have sentimental value your family would want to preserve. If family members do not know of the existence of these files, photograph albums maintained on-line could disappear forever.

Protecting digital assets

Digital assets that have value should be regarded as "property" in the same way that homes, cars, boats, tables and lamps are. Accordingly, you need to give thought to who you want those assets to go to after you pass on. Estate planning can be used to carry out your wishes regarding your digital assets. If you have digital assets that you wish to pass on to another person upon your death, you should seek the advice of an attorney experienced in handling estate planning matters. The attorney can sit down with you and create an estate plan which will carry out your desires.

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