Digital Assets: Who can access my online accounts if I die?

digital assets estate planning lawyerChances are, if you are reading this Blog Post, you own Digital Assets and have one or more online accounts.  As Estate Planning Lawyers, we continue to see changes in the law to address our increasingly tech-savvy culture. The use of electronic information has continued to play a larger role in the Estate Planning and Administration we do for our clients.

Have you ever thought about what might happen to your Facebook account if you died?  Who would get your iTunes library and how would they access it?

Tennessee Legislature Passes Revised Uniform Fiduciary Access to Digital Assets Act

The Tennessee legislature recently passed the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”), which became effective July 1, 2016. The intent of the Act is to aid in a Fiduciary’s ability to access an individual’s Digital Assets.  A Fiduciary is someone either appointed by a person or a Probate Court Court to act on behalf of the person in the event of incapacity or death.  A fiduciary may be appointed by a person in a Power of Attorney or Last Will and Testament, or by a Court in a guardianship, conservatorship, or intestate estate proceeding.  The Act also attempts to protect a person’s privacy, as it also allows the person to restrict a fiduciary’s access to digital assets, and provides additional safeguards by allowing the Custodian of the asset to request certain documentation before providing requested information. A fiduciary granted access to digital assets is held to a fiduciary standard under the Act, requiring the fiduciary to act in the best interests of the person with a duty of care, loyalty and confidentiality.

What are Digital Assets?

The Act defines Digital Assets as “an electronic record in which an individual has a right or interest,” and this “does not include an underlying asset or liability unless the asset or liability is itself an electronic record.”  The Act does not necessarily grant the fiduciary access to a person’s cell phone, computer, tablet, etc., but this class of assets includes a wide variety of items, including:

  • assets from Twitter and Facebook accounts
  • assets such as PayPal accounts
  • iTunes accounts
  • Accumulated frequent flyer miles
  • Online banking or trading accounts.

How is Access Granted?

The Act lays out specific requirements as to how the fiduciary must go about requesting access to the digital assets depending on the nature of the fiduciary representation, the type of document (if any) granting the fiduciary the authority to access digital assets, and the depth of the information needed by the fiduciary.

What Should I do about my digital assets and online accounts?

Granting a fiduciary the authority to access your digital assets (or limiting their access) should be done with specificity.   You can and should address these issues in your Last Will and Testament and Power of Attorney.  You should also make sure that any usernames, passwords, and account numbers for your digital assets and online accounts are in a safe place so that your fiduciary can get this information and provide it if requested by a custodian (such as the bank, Facebook, etc.).

If you are concerned about your appointed fiduciary’s current potential access to your digital assets, you should consult with an attorney experienced in fiduciary matters, who can review the relevant documents and properly advise you about your specific situation.

What if I need access to someone else’s online accounts?

If you are currently in a fiduciary position and you need to obtain access to that person’s digital assets or records or online accounts, please be sure to consult with an estate planning attorney to find out how you should go about obtaining this information/access, because the procedures can differ based on your fiduciary role, the powers you have been granted, and the type of information you are trying to obtain.

Let us help you

Our Estate Planning Attorneys can help develop a digital assets plan to best suit your individual needs.  Visit our website to learn more about our work and call us today at 901-372-5003.

Don’t be like Prince: Get a Will.

prince died without a will, memphis estate probate lawyer

Learning from Prince’s Mistake

It’s been widely reported that Prince probably died without a Will. This has left many people wondering:

How could someone rich and famous like Prince die without a Will?

Unfortunately, it is not uncommon for people, even the super-wealthy, to to die without even the simplest form of an Estate Plan. While at least one source reports that Prince’s Estate may be worth less than what people think, this surprising omission of someone of Prince’s celebrity status should give us all cause to stop and think about what might happen to our own families and hard-earned assets in the event of an untimely death.

2 Simple Reasons to Have a Will or Estate Plan

When we meet with potential clients and give basic estate planning seminars, we stress the importance of having, at the very least, a basic estate plan in place. This is important because:

1. Your wishes will be known. Have you ever tried to guess what another person wants? This is why many of us find Christmas shopping very stressful. The only way you can be sure to “get what you want” is to properly (and legally) communicate your wishes and desires. Just telling someone won’t cut it. After all, neither a judge nor your family will be able to ask you after your death.

2. You can help prevent family feuds and division. You may think your family is so tightknit that they would never quarrel over your assets after you die. You may be right, but you may also be wrong. Why take the chance? Make your wishes so clear that your family members have nothing to fight about amongst themselves after your death.

An Estate Plan is important regardless of your financial status. You do not have to be “rich” to need a Will. Even if you think you don’t have enough assets to justify planning ahead, it is likely that your possessions have real meaning to family members or friends. It is also likely that you have a larger Estate than you may realize.

2 Simple Reasons People Don’t Have a Will or Estate Plan

1. Fear of Losing or Giving up Control. Like Prince, many people like to retain complete control over their assets and business affairs. There’s not a thing in the world wrong with this. However, having an Estate Plan does not mean that you lose control! In fact, Estate Planning is a way to extend the control over your affairs “beyond the grave.”

2. Death is an Unpleasant and Uncertain Event. People often put off any planning or do not want to think about their passing. It is easy to procrastinate and it always seems like planning can be left for another today. However, death is an unfortunate reality for us all. As Benjamin Franklin once said, “In this world nothing can be said to be certain, except death and taxes.”

What happens without a Will?

If you don’t have an Estate Plan or Will, in Memphis and Nashville Tennessee, your Estate, like Prince’s, may become subject to state law and Probate Court orders. This is likely to lead to familial dissension and excessive fees and costs for the Estate, which in the end reduces the amount of assets remaining for your Beneficiaries. Your money may also wind up going to the Government! For example, in Prince’s case, the Probate Court has appointed a Corporate Executor for his Estate, and many attorneys will be involved because of the number of potential Beneficiaries. There will be many questions as to how the royalties and future earnings from Prince’s music will be handled. Estate taxes will have to be paid. All of these factors will lead to a lot of money being spent (and some might even say “wasted”). All of the headaches and money spent, as well as the publicity involved, could have been avoided, or at least minimized, if Prince had planned ahead by having a Will or Estate Plan.

Moral of the Story:  Don’t be like Prince.

Don’t be like Prince. Plan ahead now! Having an Estate Plan is easy, and every person can and should have one in place. A basic plan can be relatively inexpensive, even if drafted by a licensed Tennessee estate planning attorney, like the ones at Wiseman Bray PLLC.  We have offices in Memphis and Nashville. In Tennessee, and some other states, it is also possible, although often not recommended, for a handwritten Will to be valid. To read our blog post about handwritten wills, CLICK HERE.

Need a Tennessee Estate Planning Lawyer?

Call Wiseman Bray PLLC if you’re in the Memphis or Nashville area at 901-372-5003 or email us here.

Is Tennessee a Community Property State for Estate Planning?

community property, estate planning lawyer tennessee memphis

Tennessee is NOT a Community Property State

Community property states such as California and Texas, permit assets to receive a step-up in basis to the current fair market value (FMV) at the death of the first spouse to die regardless of which spouse owns the assets.

Tennessee is a separate property state. This means that only the separate assets of the deceased spouse (titled in his or her name), or 1/2  of any jointly-owned property,  are entitled to a step-up in basis to the current FMV at the death of the first spouse to die.

Tennessee Community Property Act of 2010

But wait—this Act allows for ownership of assets in a Tennessee Community Property Trust.  Although this type of ownership of assets between a husband and wife is not always beneficial, it can provide a significant advantage in the right circumstances, especially for property with a very low tax basis.Provided the Trust meets certain requirements, the property owned by the Trust will be treated as community property.

Advantage

The most significant advantage of this type of ownership is that both spouses’ interests receive a step-up in basis up to the FMV of the property upon the death of the first spouse.  In contrast, if the property was owned jointly or as tenants by the entireties, only 1/2 of the property would receive a step-up in basis at the first death. Thus, community property ownership can significantly reduce or even eliminate capital gains upon the death of a spouse.

We can advise you further.

Call us today at 901-372-5003 or email us here. We can talk with you about your assets and the best way to structure an Estate Plan that fits your family’s particular circumstances.