Most of what we do every day is accomplished digitally. We pay bills, invest in the stock market, talk to friends and family, and create art digitally. So what happens to these digital assets after a person dies? Although states have begun to adopt laws governing this topic, they are new and continue to evolve. By granting access to trusted individuals, like a power of attorney or executor, you can protect your digital assets.

What Are Digital Assets?

A digital asset is anything that is stored electronically. More specifically, Indiana law defines a digital asset as “an electronic record in which an individual has a right or interest.” Almost everyone owns a digital asset in this day and age. Some common examples include:

Online accounts — including those for social media, email, online shopping, video gaming, and blogging;

Financial accounts — including those for checking and savings, investments, credit cards, retirement, and utilities;

Digital data — including accounts where you store pictures, videos, files, and any other information stored online or in a cloud; and

Intellectual property — this includes accounts pertaining to patents, trademarks, service marks, and any copyrighted property.

It’s important to account for and address digital assets in an estate plan. Otherwise, they may be inaccessible, even to someone in charge of handling your affairs after death.

Indiana Law on Digital Assets

In 2016, Indiana adopted the Revised Uniform Fiduciary Access to Digital Assets Act (the Act). The goal of the Act is to allow those who are appointed a fiduciary role to access a person’s digital assets so they can properly and efficiently fulfill their duties. Fiduciaries are those with authority to manage someone else’s property. For example, the personal representative named in a will, the trustee of a trust, an attorney-in-fact appointed in a power of attorney document, and a guardian are all fiduciaries. If you become incapacitated or pass away, the fiduciary that you authorize will have access to your accounts. The Act also allows you to prohibit the fiduciary from accessing certain digital assets.

How the Law Impacts Your Estate Plan

After making a digital estate planning checklist, you may realize you own more digital assets than you thought. By updating your estate plan and including provisions in your documents, you can prevent delays or roadblocks for the person handling your estate. Below, we are going to see how the law impacts a fiduciary’s access to your digital assets under a few different scenarios.

Account Owner Uses Online Tool

Some digital assets, such as online accounts, have a tool that allows you to grant access to someone else. Those online directions override any contradicting digital asset clauses in a will, trust, power of attorney, or other documents. On the other hand, if there is no online tool, or you do not use the tool to designate anyone, the terms of your estate planning documents govern.

No Online Tool and No Digital Assets Estate Planning

If you have not included digital assets in your estate plan and there’s no online tool to designate a person to access your account, the “terms of service agreement” becomes the governing document. Unfortunately, this agreement does not always address non-owner access to the account. So in the scenario where there is no online tool, no digital asset clauses in any estate planning documents, and the terms of service agreement does not help—the Act provides rules for the person requesting access to the digital asset.

For a guardian, a court may grant access to the protected person’s digital assets, including electronic communications sent and received. Likewise, if a fiduciary requests access to a digital asset, a court may order that the custodian provide access as long as the requestor meets certain conditions.

There is still plenty of gray area in the law regarding digital assets. This is why it is so important to address digital assets in your estate plan and clearly state your wishes regarding access to them. This can avoid hassle for your loved ones and ensure important digital assets like pictures and accounts are still accessible.

Contact the Estate Planning Attorneys at Church Church Hittle + Antrim 

When it comes to digital assets in estate planning, our attorneys know what to do. We stay on top of any developments in the law and take such developments into account when creating or updating your estate plan.

Since 1880, our clients have entrusted us with protecting their assets and planning their legacy. Schedule a consultation with an experienced estate planning attorney from CCHA by calling one of our offices or contacting us online.