The Digital Age of Estate Planning

The Digital Age of Estate Planning



By Linda B. Hirschson and Shifra Herzberg


The proliferation of technology has moved communication, banking, networking, games, photos and music to the digital arena. In this Emerging Issues Analysis, Linda B. Hirschson, a shareholder in Greenberg Traurig's New York office and chair of the New York trusts and estates practice, and Shifra Herzberg, an associate with the trusts and estates practice in the firm's New York office, write:

“The proliferation of technology has moved communication, banking, networking, games, photos and music to the digital arena. Accordingly, the administration of an individual's assets also has to move into the digital era. A fiduciary (e.g., a trustee, personal representative, attorney-in-fact or conservator) should be able to access and manage digital assets in a manner similar to tangible assets. Most states, however, do not have laws in effect to address fiduciaries' access to digital assets for those they represent. In fact, there are federal and state laws that prohibit the unauthorized access to computers and digital accounts and prevent service providers from disclosing certain electronic communications and account information without consent. These statutes do not properly address fiduciary access. Moreover, prior to creating a digital account, account holders generally must agree to a Terms of Service agreement that may further limit a fiduciary's access to the account.

“Digital assets include emails, electronic documents, images, audio files and video files stored on digital devices like desktops, laptops, tablets, and smartphones, social networking accounts, email accounts, online sales accounts, online storage accounts, blogs, webpages and domain names. The definition of digital assets is evolving with the constantly expanding technology.”

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