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By:  Nicole T. Livingston – Associate Attorney In 2016, the Maryland Fiduciary Access to Digital Assets Act became law.  This law allows your agent named in your power of attorney, a trustee named in your revocable living trust, or a personal representative named in your Last Will and Testament to obtain access to your digital assets.   Prior to this law being enacted, agents, trustees, or personal representatives of your estate had a difficult time accessing online accounts or social media sites.   Under the new Act, you must have language in your documents that specifically state that your fiduciary has access to your digital assets.  Our documents were updated to reflect this new required language.  If you have not reviewed your documents in recent years, you should consider scheduling a review meeting with your attorney to discuss this important update to your documents. As digital assets become more common for all of us to have, it is important to incorporate them into your estate plan.   Digital assets include purchased movies, songs, books, or games which can be a significant amount of money.  Often clients have digital pictures stored on a cell phone, on a social media site such as Facebook, or a website such as Snapfish or Shutterfly.  These accounts are at risk if you do not appropriately plan for your fiduciary to gain access.  Your family members may want to retrieve these memories and you do not want them to violate any privacy terms of the service agreement you agreed to when you signed up for these services.  With the permission granted in your estate planning documents, your fiduciary can contact these sites and gain access. Clients who have a business and own a website domain site may need their fiduciary to gain access to the site if you become incapacitated or upon your death to gather pertinent business assets or proprietary information.   Electronic access to bank accounts is becoming more common.  Gaining access to electronic accounts to administer an estate is no longer a hassle under the Maryland Fiduciary Access to Digital Assets Act. There are systems in place to allow companies to provide a temporary password to gain access to the data and ease the administration of your estate. There are steps you can take now to ease the burden on your fiduciary.  First, you should update your documents with the required language if you have not already done so.   Second, create a list of your online accounts and keep the list updated on a yearly basis.  When you file your tax return each year, you can schedule a reminder to verify that the list has not changed.  Third, provide the passwords to your fiduciary using a secure method.  There are several businesses that offer services to store usernames and passwords.  Whatever method you choose, make sure your fiduciary knows where and how to find the information.   Taking these steps now can ease the burden of administering your estate.

By: Stephen R. Elville, J.D., LL.M. steve@elvilleassociates.com I think we can all agree about the following:  technology has become a dominant force in our lives; most of us use one or more email accounts; many people participate on social media sites; many people use internet banking or brokerage services, and pay bills or make other financial transactions online; it is common practice to store photographs, documents, and information, both personal and financial, electronically; and most of us grapple with a host of user identification numbers and passwords to important online services.  Because of these realities, clients need to be concerned about planning for their digital assets.  There are two major reasons why – the first is financial, and the second practical.  The financial aspect is self-evident.  At our most recent Client Event, David Kauffman, Certified Financial Planner and national expert on the subject of digital assets, outlined that the average person’s digital assets are valued at $55,000.00.  For example, it is not uncommon for certain domain names to sell for astronomical prices.  The inherent value of digital assets then spills over into the practical – the need for planning, not only for protection of these assets, but for the management and disposal of them. At this point, some readers of this article may find themselves doubting the real necessity of planning for digital assets.  If so, I ask that you do as fiction writers ask us to do – temporarily suspend disbelief and accept as fact what I assert here, or at least consider the importance of such planning, for the following reasons.  Our need is to plan for seamless access to our digital assets during a time of incapacity, and the same seamless access at death.  The problem is that in Maryland no body of law currently exists to adequately deal with digital assets.  This presents a multitude of problems, a few of which include third-party access to computers, smartphones and other hand-held devices, personal accounts and information of all kinds, including music, photographs, financial accounts, social networking, media accounts, tax accounts, online shopping accounts, and much more, during life and after death, along with how digital assets are to be managed and disposed of at death. Although beyond the scope of this article, special problems exist in the management of online accounts such as Yahoo, Gmail, MSN, Facebook, Twitter, Linkedin, and Instagram, during the account holder’s lifetime, although a few of these companies have recently taken steps in the right direction. Fortunately, the law of digital assets is currently under development and will eventually “clean the slate” and provide guidance. Until then, clients and their fiduciaries will remain in digital asset planning limbo. You can, however, be proactive and create a working plan or strategy for your digital assets, as follows: Identify and catalog all of your digital assets, including account names and numbers, usernames and passwords, answers to security questions, what the account is used for, and any other pertinent information. Consider who should have authority to access and manage the digital asset accounts and whether this person will be the same person as your personal representative. Provide broad authority for the agent under your power of attorney document to take any actions necessary concerning the management of your digital assets. Include provisions in your Will or Revocable Trust authorizing your personal representative or trustee to access, manage, and dispose of your digital assets. Determine how you will secure and provide this sensitive information for your fiduciary. Will you use a “master” password” and secure the information in an online vault or other storage site, or will you utilize a safe deposit box or traditional safe? Several online sites specialize in the storage and security of digital assets. In addition to the practical life and death management of digital assets, there are many unique and difficult problems associated with the transfer of digital assets at death and their treatment in the administration and settlement of estates that are also beyond the scope of this article.  Hopefully, this brief foray into the new world of estate planning for digital assets has raised your awareness and cleared a mental pathway enough for you to take the first step or steps towards including digital assets in your thought process – a new mental picture of your estate plan that recognizes, comprehends, and includes digital assets as a normal part of your estate and elder law planning.  The attorneys at Elville and Associates can assist you through further counseling, planning, and updating for digital assets, and can make recommendations for secure storage and other digital asset-related issues, as your needs require. For more information, please call 443-393-7696 or complete the form below.