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Updating Your Trust to Cover Digital Property

Updating Your Trust to Cover Digital Property

In 2020, the digital world has more impact on the rest of the world than ever before. Digital property can be just as important as physical property, so make sure to treat it as such in your legal documents with the help of an  Orange County estate planning attorney.

Your attorney is the one to make important changes to your estate planning documents and give your trustees access to digital assets in your trust or will. 

If you’ve had your trust for years, it probably needs to be updated to address these modern concerns and ensure that your beneficiaries will be able to access important digital information. Without that access, they’ll be left in a messy situation, dealing with legal hurdles and privacy laws. 

What is Digital Property? 

Digital property includes data, passwords, documents, email accounts, digital currency, and more.

The term covers data stored on the hard drive of your electronic devices along with those stored in the cloud, such as on a Google drive, Microsoft OneDrive, DropBox, Apple iCloud or through other similar online accounts.

Here are other types of digital property:

  • Social media accounts
  • Digital media like e-books or music files
  • Website domain names
  • Online stores
  • Photos and text files

This kind of property is very different from a traditional property, and the laws around it vary by state, and according to what type of digital property it is.

A lot of digital assets are ephemeral, and without proper permissions, they can become almost impossible to access after your death.

Why Should You Include Digital Property in Your Trust? 

Lack of access to your digital property leaves your trustees in a difficult position, and in some cases, they may never be able to retrieve important or sentimental files. 

There are several potential hurdles to accessing data and other property unless you specifically address it in your will. Passwords, privacy laws, and data encryption that are meant to keep data safe and protect citizens can become barriers in this situation. 

Whether or not trustees can access your online accounts depends on the terms of service on each. Even if your trustees do know your account usernames and passwords, it may not be legal for them to log in to your account.

Some websites specifically state in the terms of service that only the user can access their account, even after he is deceased.

You can also exclude access from certain accounts or forms of property in your will, to maintain your privacy. Here are some common forms of digital property you may want to address in your documents. 

Access to Phones

Most people carry lots of sensitive information on their cell phones, ranging from banking apps to personal text messages and notes. As a result, cell phone encryption is becoming more and more commonplace. 

Phone encryption is designed to make the contents of your phone almost impossible to get to, which is great for security but can be frustrating in the event of an unexpected death. If you want to give trustees authorization over documents, images, and other content on your phone, be sure to grant specific permissions for it. 

Access to Email Accounts 

A deceased person’s email account is covered by terms of service and privacy law that prioritize user privacy over all else. 

For example, Google is one of the largest email hosting services, and its policy specifically prohibits giving out usernames and passwords, no matter the circumstances. People can submit requests for specific information, but Google makes no guarantees and the requests go through a rigorous review.

The Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA, allows a user to grant future access to certain accounts by stating consent in a trust or a will. This makes the process easier, but in this day and age, an attorney should always make sure that your will or trust clearly communicates your wishes. 

Access to Digital Currency 

Just like with traditional currency or valuables, you need to outline plans for your online finances in order for trustees to get into your accounts. Bitcoins and other forms of digital currency are new and often not addressed by existing laws

Save your trustees’ hours of headaches by making plans for your bitcoin and other currency as soon as possible. 

Cryptocurrencies like bitcoins are geared toward anonymity and encryption. Every year, countless bitcoins are lost because people don’t leave any mention of them in their personal effects or wills. Lost digital wealth such as bitcoins are not retrievable, and without the right documentation, trustees won’t be able to get into your “online digital wallet” to collect them. 

You can ask an Orange County estate planning attorney for help with setting up a system to share your bitcoin wallet and to private the appropriate key without disclosing the access which it enables publicly in your will. 

Access to Online Records and Documents

Lots of people opt to store their records online, to save paper and physical space. You can find digital versions of important records from bank statements to tax documents. 

Without the explicit authorization of a trustee to access digital records, they’ll be left locked. It may take a long and expensive legal process to gain access to them, depending on the nature of the documents, and these types of efforts are not always successful. 

You can update your will or trust to include clear language that grants permission to retrieve personal records for your executor, if you work with an attorney who is familiar with these up to date practices. It is very important to remember that not all lawyers use up to date estate planning living trust and will documents. Choose selecting your attorney wisely, with this in mind.

How can you update your documents?

Most will and trust documents don’t cover digital property unless you ask about it, because it’s new territory and the laws governing it are frequently changing.

You can get started on updating your will or trust by putting together a list of all the property and assets that you want to cover. Then you can choose a digital fiduciary or executor that can view this list and is authorized to use the information in it.

The best way to make sure your final wishes are carried out smoothly is by adding instructions to your will for how your various forms of digital property should be handled. It’s best to add specific instructions for various accounts and devices, and you can grant or deny access as you please. 

You don’t have to grant access to all your data, and you can protect your future privacy through your will. 

Find the Right Estate Planning Attorney

Digital property law is difficult to navigate on your own, considering the many laws and policies that affect it.

Get help from an Orange County estate planning attorney to meet the local laws on various forms of digital property. 

If you wish to learn more, contact our team at Parker Law Offices today.

Maria Parker assists her clients plan for their end of life health care wishes and the ultimate distribution of their wealth after death. She personally experienced the importance of planning at the time her father passed away.

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