Law Tips: Three Less-Recognized Reasons It’s Important to Plan for Digital Assets

A few weeks ago on Law Tips Professor Gerry Beyer shared his insights on the growing significance of digital assets in everyone’s estate planning. You can find that article at: Estate Planning Does Not Include Just Grandma’s Cameo Brooch Anymore. It’s my pleasure to provide a continuation of that discussion.

Do you and/or your clients dismiss the importance of a plan for online accounts, cloud and flash drive storage, blogs, etc? How might your client be effected if he/she does not make provisions for protecting these digital assets? Professor Beyer outlines the myriad of issues in his CLE training for ICLEF’s Midwest Estate,Tax & Business Planning Institute. Such as, he discusses how planning makes things easier on executors and family members. How it prevents identity theft. How it avoids financial losses to the estate. As well as other critical issues in the estate planning realm. Today we’re sharing three of perhaps the less-recognized reasons that Prof. Beyer points out to make an estate plan for digital assets:

To Avoid Losing the Deceased’s Personal Story

Many digital assets are not inherently valuable, but are valuable to family members who extract meaning from what the deceased leaves behind. Historically, people kept special pictures, letters, and journals in shoe boxes or albums for future heirs. Today, this material is stored on computers or online and is often never printed. Personal blogs and Twitter feeds have replaced physical diaries, and e-mails have replaced letters. Without alerting family members that these assets exist, and without telling them how to get access to them, the story of the life of the deceased may be lost forever. This is not only a tragedy for family members, but also possibly for future historians who are losing pieces of history in the digital abyss. Rob Walker, Cyberspace When You’re Dead, N.Y. TIMES, Jan. 5, 2011.

For more active online lives, this concern may also involve preventing spam from infiltrating a loved one’s website or blog site. Comments from friends and family are normally welcomed, but it is jarring to discover the comment thread gradually infiltrated with links for “cheap Ugg boots.” Id. “It’s like finding a flier for a dry cleaner stuck among flowers on a grave, except that it is much harder to remove.” Id. In the alternative, family members may decide to delete the deceased’s website against the deceased’s wishes simply because those wishes were not expressed to the family.

To Prevent Unwanted Secrets from Being Discovered

Sometimes people do not want their loved ones discovering private emails, documents, or other electronic material. They may contain hurtful secrets, non politically correct jokes and stories, or personal rantings. The decedent may have a collection of adult recreational material (porn) which he or she would not want others to know had been accumulated. A professional such as an attorney or physician may have files containing confidential client information.

Without designating appropriate people to take care of electronically stored materials, the wrong person may come across this type of information and use it in an inappropriate or embarrassing manner.

To Prepare for an Increasingly Information-Drenched Culture

Although the principal concern today appears to be the disposition of social media and e-mail contents, the importance of planning for digital assets will increase each day. Online information will continue to spread out across a growing array of flash drives, iPhones, and iPads, and it will be more difficult to locate and accumulate.

As people invest more information about their activities, health, and collective experiences into digital media, the legacies of digital lives grow increasingly important. If a foundation for planning for these assets isn’t set today, we may re-learn the lesson the Rosetta Stone once taught us: “there is no present tense that can long survive the fall and rise of languages and modes of record keeping.” Ken Strutin, What Happens to Your Digital Life When You Die?, N.Y. L.J., Jan. 27, 2011 (For fifteen centuries, the meaning of the hieroglyphs on the Rosetta Stone detailing the accomplishments of Ptolemy V were lost when society neglected to safeguard the path to deciphering the writings. A Napoleonic soldier eventually discovered the triptych, enabling society to recover its writings.)

Again, thank you to Professor Gerry Beyer for sharing his expertise on the ramifications of failing to include digital assets in estate planning.

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About our Law Tips faculty participant:
Prof. Gerry W. Beyer is the Governor Preston E. Smith Regents Professor of Law at Texas Tech University School of Law, Lubbock, TX. He joined the faculty at Texas Tech in June 2005. Previously, Prof. Beyer taught at St. Mary’s University and has served as a visiting professor at several other law schools. He was also the recipient of the 2012-2013 Outstanding Researcher Award from the Texas Tech School of Law. As a state and nationally recognized expert in estate planning, Prof. Beyer is a highly sought after lecturer. He has authored and co-authored numerous books and articles focusing on various aspects of estate planning, including a two volume treatise on Texas wills law, an estate planning casebook, and the Wills, Trusts, and Estates volume of the Examples & Explanationsseries. Professor Beyer received his J.D. from the Ohio State University and his LL.M. and J.S.D. degrees from the University of Illinois.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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