The social distancing, telework, and like effects of the Covid-19 pandemic have only increased our use and reliance on electronic communications and assets. In fact, I think you would be hard-pressed to find an individual who does not own, or at least has not utilized, an iPhone, computer or on-line account since the beginning of the pandemic. Every time you use your iPhone to take a picture or send an email, you create a digital asset. Every time you purchase a book, song, or movie electronically for use on your Kindle or iPad, you obtain a digital asset. You do not need to invest in a form of cryptocurrency in order to own a digital asset. Digital assets may have a monetary value, may contain a sentimental value, may contain personal information, or any combination of the above.
In July 2020, Pennsylvania joined approximately forty-five (45) other states in enacting the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”), providing default rules and guidance for the handling of and access to digital assets by fiduciaries, including an agent under a power of attorney, a personal representative of a decedent’s estate (executor/administrator), a trustee of a trust, and a guardian of an incapacitated person’s estate. It is important for us to designate who has access to our digital assets when we are incompetent or deceased, who is to receive them once we are deceased, and/or whether they should be destroyed once we are gone. The more valuable the digital asset, the more important our planning becomes. Under the RUFADAA, agents under powers of attorney executed following the Act’s effective date (January 19, 2021) will not automatically have access to and control over the principal’s digital assets unless those powers are specifically provided in the document. Further, it is important to revisit your Will to make sure that your intentions regarding your digital assets are captured. In the absence of specific directions with your estate planning documents, a fiduciary may be forced to incur the expense of a court action to compel the release of the assets.
Before meeting with an attorney, I would recommend creating an inventory of your digital assets: What are they? Where are they located? What is the password? Then, you can determine who would be best to handle that asset and whether it should be transferred or deleted following your death. This will be a living document that constantly changes over time with the addition/accumulation of digital assets.
The attorneys at Mette, Evans and Woodside are available to assist with updates to your estate planning documents to properly handle access to, control of, and disposition of your digital assets.