By Nerino Petro at 17 April, 2012, 10:36 am
As a lawyer, I always urged my clients to get their estate planning documents (wills, powers of attorney, trusts) in order and to update them on a regular basis. With the increased use of online banking, bill payment, email, etc. what will happen to these digital assets on your death? Will your significant other, agent, executor or trustee be able to access these assets and fulfill their due diligence requirements to the estate? Or will they face their own version of Hell because these assets were overlooked? Luckily, someone has thought about this and have shared their answer to this issue.
My very good friends Sharon Nelson and John Simek of Sensei Enterprises recently dealt with this issue in their own estate planning documents. Sharon, who writes the Ride the Lightning blog, posted here about how they elected to deal with this issue of digital assets and included the language that they crafted with the assistance of their attorney. The provision that they crafted for their powers of attorney provides:
“Digital Assets. My Agent shall have (i) the power to access, use, and control my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops for the purpose of accessing, modifying, deleting, controlling, or transferring my digital assets, and (ii) the power to access, modify, delete, control, and transfer my digital assets, including but not limited to, my emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items which currently exist or may exist as technology develops, and (iii) the power to obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets described above.”
For greater emphasis to banks, include in the provision giving the Agent powers regarding financial accounts:
“….and to access, modify, delete, control, and transfer my digital financial accounts.”
They also provide sample language for wills and a digital assets memorandum.
If you want to protect your clients, I strongly recommend that you review these samples and consider how you can implement them in your own practice. If you fail to take digital assets into account and issues arise in probate or otherwise regarding them: do you want to be the subject of a grievance filed because you failed to include the necessary language which could have prevented the issue in the document? Don't increase the possibility of a malpractice or disciplinary claim and consider their digital assets as well.
Finally, in today's competitive legal market, use this to differentiate yourself from other lawyers: use the fact that you protect not only your clients physical assets but ther digital assets as well thereby calling attention to the fact that you are aware of the risks posed by the digital age.