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Estate planning now includes electronic considerations

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Estate planning in a digital era encompasses more than just the material things you possess. These days, you have to consider your digital existence as well as your temporal one.

When planning your estate, you need to think about your digital accumulations and accounts such as air miles, loyalty points, bank points, cryptocurrency and social media.

“It’s our electronic lives online,” said Sharon Hartung, a technology adviser and the author of Your Digital Undertaker.

 “We wouldn’t dismiss a bank account with thousands of dollars in it, so we really shouldn’t ignore our digital assets,” she said.

Most states have laws addressing what happens to a person’s digital assets, but there can be a tension between access for heirs and online privacy. In 2016, the South Carolina legislature passed its version of the Uniform Fiduciary Access to Digital Assets, which lays down rules for when the companies that maintain such digital assets need to disclose them to an executor.

“That was an attempt to start to grapple with these issues in a way that was satisfactory both to us as estate planners and attorneys and the various online cloud-based services where people are doing their business,” said Mike Polk of Belser & Belser in Columbia, who chairs the S.C. Bar Association Technology Committee.

Polk said the law gives people more autonomy as to what they pass on and recommended that people occasionally check the terms of service for their most important digital products for potential changes.

But, experts advise, you shouldn’t pass along account passwords to heirs and beneficiaries without giving  explicit access permission, since this technically violates federal laws against online fraud. 

“All the same barriers that have been put in place to protect us from identity theft and cybercrime are the same barriers to the executor,” Hartung said.

If you or your business have digital assets, let your attorney of beneficiary know, and let them know how to access them, experts say.

Both Hartung and Polk mentioned Google and Facebook among the few digital providers that offer a pre-planning function. But the online estate planning service deadsocial.org reports that less than 5% of subscribers are using these features.

“This is something I think consumers will demand once they find out what the problem is,” Hartung said. “It’s a really complicated issue for lawyers to wrap their heads around as we try to navigate and make sure we can do the same thing we’ve done with our physical assets, is bequeath these to beneficiaries.”

Legal experts also advise business to inventory their most important online accounts and make sure someone trustworthy can access them if they die. Let your attorney know what you’d like to pass on who should receive the account rewards or information, and how those accounts can be accessed.

Polk said planning can save a family frustration during a time of grief.

“You see these heartbreaking cases of somebody who passed away without leaving any sort of direction, and after a year or two, their accounts have been deleted, and so the families are stuck,” he said. “Over time, it’s really going to be important to keep on top of what your websites and online accounts are doing and the changes that are being made to them.”

This article first appeared in the Oct. 21 print edition of the Columbia Regional Business Report. 

Reach Renée Sexton at 803-726-7546.

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