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Transferring your digital assets

By Ross Hart

This month I have a guest article by Ross Hart. Ross is an Elder Law Attorney and OCS Newsletter reader, who felt this information would be useful to many of my readers. I agree.
In this digital age, who has control over "Digital Assets” (Facebook, Amazon, on-line banking and investment accounts, etc.) when someone dies or becomes disabled? It’s been a big controversy for several years and many people have heard horror stories. Generally, it’s up to the law of your state what happens and the good news is most states have adopted a uniform law. Oregon is one of those states.

Three years ago the Uniform Commission on State Laws, working with industry lawyers, came up with how someone can access digital accounts when the owner dies or is incapacitated. It's in the Uniform Fiduciary Access to Digital Assets Act (rev 2015). It can be found here. As of April 20, 2018, it's been enacted in 41 states and introduced in 5 more – as shown at that link.

My practice is exclusively Elder Law (wills, probate, trusts, powers of attorney, adult guardianship) and I now incorporate language to take full advantage of the law when I'm preparing document for my clients. Everyone should ask their lawyer about adding this to their plans.
[name] shall have access to and authority over any User Account, Digital Record, Digital Asset, Electronic Communication, Information or Record belonging or pertaining to [me] according to the terms of service agreement for the account to same extent as [I have], without limitation.
I recommend you consult an estate planning or elder law attorney for advice and a decent estate plan. If you have a will and ‘digital assets’ call the lawyer who wrote it and ask if there is authority to handle digital assets in your documents.

By the way: beware of Internet forms because they inevitably miss a nuance that should have been considered. The resulting plan is bad for the family. (for me, the positive side of Internet forms is that I make 30 times the fee cleaning it up as I would have to set up the estate plan).

I’m a member of the National Academy of Elder Law Attorneys (NAELA), and on the Board of Directors for the Virginia Chapter. The website at www.naela.org has a fairly good "Find a Lawyer” feature – put in your zip code and search radius and everyone who’s a member in that radius will be displayed. Most listings link to websites so you can get an idea of the particular lawyer before you call.

Ross C. Hart J.D.
Salem, Virginia

Date: May 2018

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This article is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

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