Digital Will - A Necessary Part Of Any Modern Estate Plan

By:  Eric N. Allen          February 2016

Chances are that you have never heard the term "Digital Will." A Digital Will is not a Last Will and Testament in electronic format. Instead, to use the words of Wikipedia, a Digital Will determines "the fate of a person's digital presence once they die."

The fact is that in the digital age a person's assets not only consist of the physical assets that one can hold, but also the digital assets that effectively control much of a person's physical assets. Individual access to personal online data grows at an exponential rate every year. Such data includes shopping sites, credit card sites, social media, gaming sites, email accounts, and sites maintained by virtually every smartphone app. The intent of a Digital Will is to allow a person to name a representative to act on that person's behalf in handling the deceased person's online presence and also to provide some guidance in regard to what is to be done with the data. A Digital Will is necessary because there are few laws1 that govern the access to a deceased person's digital data, and the terms of service of various websites invariably will conflict with whatever laws are passed. Do you want your accounts deleted, or do you want to name a person to have access to them? Without a Digital Will, no one will know.

Because the problem of managing a deceased person's online access is so new, numerous methods have been proposed to solve the problem. For example a site called the DigitalBeyond lists 58 different digital death and after life online services. Many of these services look appealing, but may cost money and there is never any guarantee that the service will still be in business when you die.

When privacy is a key, the last thing that any of us want to have is the ability of someone else to be able to access one of our accounts during our lifetime. A Digital Will should be more than a simple statement as to what the person wants done with their online presence following their death, it should provide a means for the representative to accomplish the intentions set out in the Digital Will. Those means may include providing the representative with access to a program where the person maintains all passwords (such as LastPass or 1Password); or could be something as old school as describing where the password list is kept (such as a safe or safe deposit box).

Because no one individual's desires and needs will be the same as someone else, there is no online tool that can replace the experienced planning and careful drafting of a Digital Will by an experienced attorney.  Contact the experienced attorneys at ALLEN WELLMAN McNEW HARVEY, LLP at (317) 462-3455 to learn more about how we can help establish a Digital Will.

 1 See Uniform Fiduciary Access to Digital Assets Act approved July 16, 2014, by the Uniform Law Commission and counterpoint Yahoo Slams New 'Digital Will' Law.