Digital Assets. Leaving Without Them.

For most of us our lives are deeply tied to digital content and access, both in our work and leisure. My law practice is virtually paperless, and has been for the past few years.  In another progressive move, the Georgia legislature during 2018 enacted the “Revised Uniform Fiduciary Access to Digital Assets Act”.  This is under O.C.G.A. Section 53-13-1 et seq.  In short, these laws set forth the authority, manner, and powers that enable your agent to act on your behalf as to your digital assets. An agent is a  guardian, conservator, trustee, executor, etc.  In other words, if I were to drop dead today, what happens to my digital world, and who will have the ability to pick up the pieces?

The purpose of this blog post is not to provide an extensive discussion of Georgia’s new digital assets law.  Others have already prepared numerous, excellent posts and articles. Click here for a comprehensive Fall 2018 Georgia State University Law Review article on this subject.

The point of my blog post is to share the following provision that I designed for inclusion in a revocable living trust in response to this new law.  This trust language might be helpful to readers as a real world example of how this digital assets factor might fit with one’s estate planning.  I also invite readers to give me their comments about this illustrative provision. The topic of “digital assets” is exponentially changing and expanding all across the country (and world) as well as in the courts.  In my view, there is not yet clear-cut, consensus on the optimal way to address this new-world topic. My approach, therefore, is to provide a provision that is as broad as desired, and flexible, to take into account these continuing, exponential changes in our digital world.

I also realize fully that one might possibly, and simply,  cross-reference the above new Georgia statutes in a trust or other document without the need also for including more-expanded digital assets language in the document beyond the mere cross-reference. But, until (and if) all states eventually enact these uniform digital assets laws, I am not comfortable merely adding a statutory cross-reference in the document, without more; especially if the document may later need to operate in jurisdictions other than Georgia.

Below is my revocable trust document provision (which I have to disclose to readers cannot be relied on by  readers of this blog post as legal advice from me for any reader’s own situation).  I provide this provision only as food for thought:

6.2            This section defines my electronic communications content with my intent that this definition be construed as broadly at my death as possible to take into account my digital assets and electronic communications content as defined herein and in O.C.G.A. Section 53-13-2 (as amended), as well as changes in the digital and electronic-communications technology that will continue to occur after the date of my execution of this trust agreement; provided, however, that any direction at the time of my death as to my digital assets and electronic communications content that I have implemented using an online-tool (as to such digital assets and electronic communications) shall override any contrary provisions under this trust agreement. Except as may limited by my online-tool designation otherwise, my electronic communications content under this section 6.2 includes the digital content as to any computer software, account or digital app that I access on a computer where such digital information is stored on my computer or on the digital web, or for which I have user-name / password access, including, but not limited to, any of my accounts, webpages, URLs, and domain names (as examples: account login information and passwords, account profiles, photos, posts, passwords, crypto currency blockchain network, wallet, and key data, emails, texts (including phone texts), financial account information, email account information, blogs, bulletin boards, Facebook, iTunes, Instagram, Snapchat, all other social networks, and to obtain any administrative or  user-profile information pertaining to any of the above accounts (digital or hard copies, or otherwise), summaries, data files, statements, photos, videos, audio files, texts, e-mails and attachments to such e-mails, within these accounts). More broadly, my digital content also includes all digital files stored on my digital devices, including but not limited to, desktop computers, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, password apps and any similar digital device that currently exist or may exist following my execution of this trust agreement, my emails that I send and receive, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file-sharing accounts, financial accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts and data, online stores, affiliate programs, other online accounts, and similar digital items that currently exist or may exist, or such other comparable items that come into existence as technology develops, regardless of whether I own the physical device on which the digital item or data is stored; provided, however, my digital assets and electronic communications content shall not include any underlying assets or liabilities referenced by, or accessible with, such digital content unless the asset or liability exists exclusively and solely in digital form only as a digital electronic record, such as, but not limited to, crypto currency, photos, audio files, videos, music playlists, emails, iTunes content, Kindle reading and audio files, etc.

6.3            As to my electronic communications content, in order to facilitate the Trustee’s administration of this trust agreement, including after my death the administration of my estate, I give both my Trustee and my duly-appointed executor access to my electronic communications content as may be reasonably necessary from time to time for the administration of this trust agreement and my estate.

6.4            Following my death, and after taking into account the preceding provisions of this trust agreement, the remaining property under this trust agreement (including any distributable interests in my electronic communications content) is for purposes of the following trust provisions referred to as my “Trust Remainder“.

Note that I designed the above provisions so that any digital content that is an asset or liability (see above definition on this point) becomes part of the trust remainder  to be distributed by the trustee under the following provisions of the trust document. Typically, I am more comfortable having the trustee designated for handling these items rather than making a specific bequest of any such digital assets or liabilities to an individual beneficiary.

Ponder also, for instance, if a person, to others’ great surprise, dies with $10 million of crypto currency. Where does that unanticipated digital asset fit with the estate planning? Under my trust remainder language above, this crypto currency would be available, for example, for a QTIP marital deduction trust under the terms of the revocable trust,  etc., to be addressed and held in the hands of the trustee with greater oversight, flexibility, and so forth.

 

 

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