You’re a lawyer, so no doubt you’ve gotten your estate plan in order. Right? (Even if you don’t know squat about estate planning, you hired a colleague to put a plan together for you, I”m sure. Right?)
And you’ve created a succession plan for your practice. Right?
And both your personal and practice plans handle all of your digital assets. Right?
Sadly, when polling my lawyer friends and clients, it appears that very few have planned generally. And none have done any planning for digital assets. Yep, none.
I guess we really shouldn’t be surprised. Many lawyers remain in a state of tech-phobia or tech-avoidance. Even those who embrace technology seemed to have forgotten that their succession and estate plans should address all of the accounts they have living in the cloud, and not just bank accounts.
A handful of states have started addressing this issue, including Delaware, which recently enacted the Fiduciary Access to to Digital Assets and Digital Accounts Act. (A matrix of state laws (not including Delaware, appears at the bottom of this post.)
Whether or not your state of residence/practice has provided any guidance in this area, plan you must. If you use any kind of cloud-based platform (email, practice management, social media, cloud backup???), do these things, now:
Read the terms of service agreements for your digital accounts. Not only are you ethically compelled to do this, it’s the only way to find out what a platform does with your account upon your death. So read and find out. If you don’t see a clear statement from the provider on this, then ask.
Take the appropriate steps for each platform, to enable access. Now knowing what Facebook does with your account, make sure that you’ve addressed how this account can be accessed when you’re gone, and provide instructions to your executor (or digital executor, if someone other than your primary executor will be in charge of your digital assets).
Figure out who will handle your digital assets. As I note above, you can have these accounts managed by your executor (appointed in your will document), or by a “digital executor.” Why have a digital executor? Given the number and nature of your digital accounts, you may want (or need) to have these handled by someone with the appropriate technical capacity. And if the accounts contain confidential client data, then this should be taken into account when appointing someone.
Commit your digital asset plan to writing. And make sure that the right person(s) have this information, or know where to find it when the time comes. And if you live/practice in a state with a law governing digital assets, make sure that your wishes are in line.
Review your plan annually. You should be reviewing your estate plan annually, anyway. So add digital assets to the list. Why? Accounts come and go. The backup provider you used last year may be different than the one you’re currently using. So you’ve got to update the plan accordingly. The plan is only helpful if it’s accurate.
Seriously, if you haven’t made a plan and you’re not reviewing it annually, then you’re failing at a very important part of being a responsible adult who also practices law. This stuff isn’t hard or time-consuming to accomplish. So add it to your to-do list, Kanban board, or calendar. And get it done.
Image source: Pew Research Center