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Who Owns Your Data

By Lane V. Erickson, Idaho Estate Planning Attorney

The purpose of estate planning is to protect you while you are alive and to give you an opportunity to decide who you want your money, property, and other assets to go to after you pass away. The assets that you own and control include your digital assets as well as your other assets. In the world we live in today, digital assets are often very valuable. These kinds of assets could include online accounts that hold money, online stores or other retail ventures. Digital assets could also include copywritten, trademarked, or patented items. Additionally, digital assets also include all of your social media accounts, and so forth. Many of these items either hold or produce income to their owners. As a result of this, it is important to consider what happens to your digital assets after you pass away.

This recently became a topic of interest that was reported on by Yahoo News because of a study that was done by the Oxford Internet Institute which stated that based on its analysis, within the next 40 to 50 years, Facebook will hold more accounts for dead people than it does for living people. In other words, individuals who had Facebook accounts who have died will outnumber those who have Facebook accounts that are still alive. This report estimated that within this time period Facebook accounts for deceased individuals could reach a number as high as 4.9 billion!

At the Racine law office we have been providing Idaho Estate Planning and probate services to our clients for more than 70 years. When it comes to providing estate planning services we take into consideration the need to deal with digital assets as well as all other types of assets that most individuals have including money, property, and so forth. We are confident that we have the skill, expertise, and ability to help you deal with all of your assets as part of your estate planning including all digital assets as well.

The purpose of this article is to give you some ideas about what types of digital assets you might have and what you can do to protect these as part of your estate planning.

Idaho’s Uniform Fiduciary Access to Digital Assets Act

The first place to start is to know and understand that if you live in Idaho that you have some additional protections that might not be afforded in other states. Because digital assets don’t have a physical location, sometimes the companies that administer those digital assets, such as Facebook, PayPal, and so forth, believe they have the ability to dictate and control how your digital assets are handled after your death. However, Idaho has specifically enacted a statute entitled the  Uniform Fiduciary Access to Digital Assets Act codified at Idaho Code 15-14-101 et seq., that controls the digital assets for its citizens.

The main purpose for this statute is to give individuals who are named as personal representatives, or trustees, or who hold a power of attorney for a person who is alive, legal access to deal with the digital assets of another person. These individuals are known as fiduciaries because they hold a special responsibility to perform specific duties for the individual who named them. As a result of this statute, a personal representative in Idaho who is dealing with the estate of the person who passed away would be able to have legal access to all the digital assets of the deceased individual. This makes the process of dealing with those assets much easier. If it weren’t for this statute, the administrators of the digital assets, would likely require a court order to be issued before they would allow another person to have access to those assets.

Keep in mind however that simply having legal access to digital assets through this statute alone is not enough. There are some additional things that you could and should do to make access to your digital assets not only easier to accomplish but also possible in the first place.

Leave a List of Accounts

Perhaps the most important thing that you could do is leave a written list of your digital assets in some form as part of your estate planning. In other words, if you have a Facebook account you can identify it on this written list. Unless you were constantly talking about the different types of digital assets that you have, it is likely that your family and loved ones would have no idea that these digital assets even exist unless they were on your written list.

The types of digital assets that you should put on this written list would include any and all online banking accounts, or other financial accounts, or retirement accounts.  You should also include accounts that receive money from other individuals such as PayPal or venmo. Social media accounts such as Facebook, Twitter, Instagram, Snapchat, and so forth should also be included. Additionally, if you have some sort of online retail presence, or if you are the author or owner of works of art or items that could be trademarked or copyrighted or patented, all of these should also be placed on your written list. By providing this information, you are making it much easier for your family and loved ones to deal with your digital assets both while you are alive and particularly after you have passed away.

Leave a List of Login Information

Additional information that you can provide to your family and loved ones would be the login information for each of the accounts listed above. We don’t recommend that you type this information into a computer file. Rather, we suggest that this information be handwritten. It can then be photocopied and one of the copies could be placed with your estate planning documents and another copy could be placed in another safe and secure location that your family is aware of.

To be sure, through the statute that is listed above, your family will have the legal ability to gain access to your account even if they don’t have your login and password information. However, this would require them to contact the account administrator, provide proof of the fact that they are your fiduciary, such as your personal representative, and then obtain access through the account administrator directly. It would be so much easier if your family and loved ones could simply use your login and password to access your digital assets.

There is no doubt that the world is changing. Digital assets have become not only a recognized but also normal type of property that many of us own in different varieties and ways. We have helped numerous individuals in their estate planning with not only their regular assets but also with their digital assets. We are confident that we can help you too.

Enlist an Idaho Business Attorney to Help You

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.

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