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Valuable Digital Assets: Estate Planning’S New Frontier

A person must make many decisions when creating a will, establishing a trust or implementing other estate planning strategies. Important choices regarding everything from tangible assets to the identity of people chosen to carry out one’s wishes will have long term implications.

One area of concern that has received enhanced attention from estate planning and probate lawyers in recent years is the fate of a person’s digital assets. Everything from a person’s Facebook profile to email distribution lists and other reams of data can have significant value, particularly if they are affiliated with a business or particular skill.

For some people, the unique value of certain online assets will mean that they want to ensure that the item goes to a particular person. Any web identity from an online gaming presence to a blogger’s persona could become a subject for designating passwords and future control to a trusted colleague or cherished friend or loved one. The same is true for digital assets with personal value such as family digital photo albums or genealogy documentation.

Distinctions between licensing of content and property rights can have important implications for a person’s ability to pass along access to another. For instance, a music account such as iTunes involves an indefinite license to access music files in the Cloud that is not the same as a stack of CDs. On the other hand, messages and contact lists saved in a Gmail account are generally considered to be property that can be passed on to another person.

Due to the difficulties some families have encountered with ability to access vital information from a personal email or social media account after a person’s death, some states have enacted specific laws to authorize personal representatives (executors) to have access to the information. Ohio is a rarity among states that have passed laws regarding digital assets, but this is a rapidly developing area of law where determinations must often be made in probate court based on existing statutes and legal precedents that were intended for financial assets and other property.

Because digital assets can change quickly and frequently, they might often be designated in the residuary clause of a trust or will, which disposes of the remainder of an estate after certain items and assets have been detailed. An Ohio estate planning attorney can explain the latest legal developments and help a client consider all factors relevant to digital asset preservation and future control.