Are all your electronic affairs in order?

Posted: September 09, 2012

As Lake Forest, Ill., economist Mike Moebs planned for his marriage last year, his lawyer pressed him for a complete list of assets.

The frequent-flier miles detailed in his online travel records didn't even cross Moebs' mind until his attorney recognized their value.

"We gave a lot of thought to the things that I own," said Moebs, chief executive of Moebs Services Inc., an economic-research firm. "I've flown, just on American Airlines, more than three million miles, and I have half a million miles I haven't used."

To prepare for the worst, he also has created an inventory of user names, passwords, and answers to security questions for more than 50 accounts, including online bank and investment records, and billing setups for credit cards and phone bills. His family and close business colleagues can access them if he dies or is incapacitated.

Family heirlooms and records aren't what they used to be. Everything from photos and music to financial statements and tax documents are increasingly likely to be created, stored, or accessed via computers, mobile phones, or other devices.

"I'm revamping my personal and business trusts to include all digital assets and what I want done with them," Moebs said.

He appears to be far ahead of the curve. Estate planners, lawyers, and surveys indicate few people have begun revising their family and estate plans to keep pace with the new reality of digital assets and online accounts.

In a recent survey by the BMO Retirement Institute, more than half of survey respondents 45 and older with digital property believe it's very or somewhat important to make plans for their personal and financial online assets, yet 57 percent have not made such provisions.

Overwhelmingly, the two most common answers given for not doing so were, "Didn't think of it," and, "I don't think it's necessary."

Chicago lawyer Richard Magnone suggests, "People don't think of digital assets in the same way as tangible assets."

Yet not accounting for passwords and other online records could leave loved ones or business associates unable to access accounts promptly, keep finances current, or continue to run a business. And unless provisions are made, e-mail providers might deny family members access to the deceased's accounts.

Take Yahoo's terms of service, found under a link on its home page. It refers to "no right of survivorship and non-transferability."

Digital-asset case law is scant, but in one of the earliest legal fights over such property, a Michigan court ordered Yahoo to turn over the contents of Justin Ellsworth's account in 2005 after the Marine was killed in action and his family sought access to his e-mail.

Several states have passed laws addressing various digital concerns, but the legislation varies greatly. As a result, the National Conference of Commissioners on Uniform State Laws has a committee drafting recommendations for state legislatures concerning a fiduciary's rights to manage and distribute, copy or delete, and access digital assets.

A fiduciary administering an estate or the affairs of an incapacitated individual needs to be able to find, access, value, protect, and transfer the individual's online accounts and digital property, the commission said.

In 2007, Indiana declared that electronic documents are to be considered estate property. The law requires anyone who electronically stores the documents or information of another person who dies to give the representative of that person's estate access to or copies of the data.

The Indiana law prohibits custodians from destroying or disposing of the documents or information of a deceased person for two years after receiving a court order or a request for access to the electronically stored documents or information from a representative of the estate.

Gerry Beyer, a Texas Tech University law professor who writes about estate-planning issues, said that even if a person gives power of attorney to an agent to access digital assets, that doesn't mean a bank, social-media site, or e-mail service will accept that authority. It might take a court-appointed guardian to get access to the records, he said, because an agent's authority typically ends when a person dies.

Moebs traces his transition to digital to 2003, after his house sustained major flood damage and century-old family photos were destroyed.

"This is never going to happen again," he promised.

Since then, he has digitized many photographs and a record collection that includes a 78-r.p.m. by Enrico Caruso inherited from his father and Janis Joplin's Pearl.

He said his wife and key colleagues at his 10-employee business know how to get access to his Outlook account in case of an emergency. His two "right-hand" employees and his wife have the information they need to access digital assets, pay suppliers, and contact customers.

"The three of them need each other if something should happen to me," he said. "Valerie would own the digital assets of the business, and my two employees would be able to use the information off the digitized assets, mainly the data" needed to continue running the business.

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