Digital assets are the new buzzwords in Estate Planning—although protecting digital assets is not really a new concept. In fact, it has been over five years since the Arkansas legislature passed a law regarding the issue of digital assets in Estate Planning. We will explain what the law means to Arkansas residents and provide some tips for making sure you have a plan for your online accounts, social media profiles, and email archives if you become incapacitated or die suddenly.
What Does the Arkansas Law Do?
The goal of the Revised Uniform Fiduciary Access to Digital Assets Act of 2017 was really just to clarify and codify the rules of engagement with online accounts, passwords, and digital properties. Because every social media company, shopping website, search engine, and email provider has different policies and procedures, the digital world has become the Wild West in some ways. Many states, including Arkansas, wanted to provide a legal basis for digital asset holders to include these assets in their Estate Plans so that their heirs and fiduciaries could access them if needed.
Specifically, the law in Arkansas states the following:
- Account tools are legally enforceable. If the custodian of a digital asset—for example, Google, Amazon, YouTube, or a bank—provides an online tool to allow the account holder to designate who can access the asset, to what extent, and under what circumstances, that agreement would be legally enforceable. However, this must be a specific tool for that purpose, not just a general terms-of-service agreement.
- Instructions can be provided in Estate Planning documents. If the asset does not provide a means for naming an approved user, then any instructions left in the holder’s Power of Attorney, Will, or Trust will govern who can access the account.
- Terms-of-service agreements will be honored. If the account holder did not designate an approved user and did not include heirs or instructions in their Estate Plan, then the terms of service of each specific property will be followed. In other words, if a social media company’s user agreement specifies that an account will be shut down and deleted upon the holder’s death if no agent is named in a legal document, then the courts will have to abide by that rule.
What all of this means for you is that it is important that you think about and plan for the disposition of your digital assets as part of your Estate Plan. This is especially true if you have accounts that are valuable—whether that is a profitable YouTube show, thousands of personal photos stored with Google, or emails containing sensitive information. These assets might be as important to you as special family heirlooms, and should be planned for in the same way.
What We Suggest You Do to Plan for Your Digital Assets
You probably have more online accounts than you are aware of, so the first thing we recommend is taking an inventory of all of them. This includes financial institutions, utilities, cloud storage, email, store accounts, social media, streaming services, and any websites that you moderate or manage. Find out if any of them provide a tool for naming an agent who can act on your behalf and utilize that tool. Next, we recommend that you:
- Decide what should happen to each account. Go through your list and think about what you want to happen to each account if you are incapacitated or gone. Do you want social media accounts to be memorialized? Is there important information in emails that needs to be saved? What should happen to your digital photos and videos?
- Use a password manager. A password manager is a secure tool for storing all of your passwords in one place. This will make your estate executor’s job much easier because they will only need one password to access all of the others and take care of those assets.
- Include digital assets in your Estate Plan. Finally, digital assets should be included in your Estate Plan. Your Power of Attorney can include digital assets and passwords, and you can include instructions for what should happen to each account and who should take possession of photos or videos.
Are You Looking for an Estate Planning Attorney in Texas or Arkansas?
If you need the advice of an Estate Planning attorney who understands digital assets, don’t hesitate to reach out to us. Contact us online or call our Texarkana office directly at 903.223.5653. We also have offices in Tyler, Paris, and Longview, as well as Magnolia and Hot Springs, AR!