The arrival of the digital age has spawned the necessity of additional planning for our estate planning clients. We have historically viewed personal property as falling into two major categories, tangible (items you can see or hold) and intangible (items that lack physical attributes). Recently, a new subdivision of personal property has emerged, that is commonly being referred to as “digital assets.” There is not universal agreement about the property category in which digital assets belong. Some say they are intellectual property, while others classify them as intangible property. In fact, some digital assets may not be a property interest at all, but are more accurately licenses to use a website's or digital account's services that generally expire upon death. Increasingly, digital assets may represent a sizeable portion of a client's estate. Despite this relatively recent phenomenon, most estate planners have not figured out how to address the handling and disposition of digital assets. It is important to understand digital assets and to incorporate the disposition of them into clients' estate plans. Digital assets can be classified in various categories, including (1) personal assets which may be stored on a computer, server, external hard drive or smart phone, in the Cloud, or uploaded onto a web site such as Flickr or Shutterfly, such as photographs, videos, e-mails, instant messages, playlists, medical records or tax or business documents or records; (2) social media assets including the websites Facebook, LinkedIn and Twitter, as well as e-mail accounts; (3) financial accounts and records, such as traditional bank and investment accounts, accounts with Amazon, PayPal or other financial sites, an eBay account, or subscriptions to electronic magazines or other media providers; (4) domain names and blogs; (5) loyalty program benefits, such as the accumulation of miles or points through frequent flyer programs or credit card accounts. Access to most, if not all, of these “digital assets” requires the use of one or more usernames, passwords, e-mails, responses to security questions, or other access codes.
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