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Protecting Digital Data

There has been recent ‘buzz’ in estate planning about making sure that a person’s digital/electronic data is maintained under an estate plan.

One of the better definitions of digital data that I found  – a digital asset can have value, can be owned, but has no physical presence.

However, there is also electronic data that has no intrinsic value, other than ‘sentimental’ value, for example a family photograph or vacation video.

If you have not read your estate plan recently, then it may be time to review the plan and make sure that your “electronic estate” is managed according to your wishes.

Some planners have even considered the option of having an ‘electronic estate trustee’ (separate from any other trustee) who would have the ability to navigate the complex digital information landscape, including its privacy laws; have the capability of using technology and be trusted with the authority to access all digital data.

If you think that you do not have digital/electronic data to protect, you might want to consider that many people retain various Passwords: to their banking; investments; cryptocurrency; social websites; email accounts; online payment accounts; reward programs; internet purchase sites..the list goes on.

There is accumulation of data on computer hard drives and on smartphones.

There is electronic data stored ‘in the cloud’.

Individuals retain digital photo albums; manuscripts and music.

Some of the data has distinct financial value, other data can have sentimental value to beneficiaries.

If a person is deceased or incapacitated, who among their trusted individuals would have access to the stored information.  Would that trusted person have appropriate authority to utilize the data and the knowledge to access it?

The person who would be entrusted with accessing digital/electronic data within your estate plan:

  1. Must know that such accounts exist- This means making and keeping records up-to-date as part of your estate planning process
  2. Know the rules – Some rewards programs are transferable, some are not. Some sites allow for third party access, some do not
  3. Most sites are password protected – this means keeping track of passwords and their changes
  4. Different types of accounts have different rules regarding log-on and ownership. Those rules may change as the legal issues of fiduciary responsibility over digital assets evolve.
  5. Crytocurrency accounts – have different access requirements. A trustee would need to know what is required.
  6. Probate – may not necessarily consider all digital accounts (some probate codes are silent on digital assets)

In addition, there are issues of how to delete digital data and accounts, which is in continuing review.  For example, some social accounts do allow for the ‘memorialization’ of accounts and some do not.

Some government legislation covering digital assets is encompassed in the Stored Communications Act (SCA) and the Electronic Communications Privacy Act (ECPA)

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Personal Cyber Security

Our friends at Squared Away from the Center for Retirement Research at Boston College have come up with another pearl of wisdom for us: the Article/interview on June 27, 2017, How Your Data Get into the Wrong Hands

Warning: for some, the article might be scary reading!

The Squared Away Interview was with Chris Vickery, director of cyber-risk research for UpGuard in California, who warned listeners recently about a situation in which another high-technology company allowed 198 million voters’ personal information to become publicly accessible online.

In general, we are more vulnerable than we think we are to personal security breaches. “If a bad guy has your phone number and can get your PIN, they can, at 3 in the morning, get a code sent to your phone, listen to your voicemails, log in to your bank account and drain all your money,” Vickery said. “Phone numbers are more important than people realize.”

And there are a lot of people being careless with their emails and its content. Social networking sites are another source of information for the ‘bad guys’ to mine into.

According to Vickery, Experian put together a data base called Mosaic, and placed group names to the data. Here are some: “It’s (Mosaic) a lifestyle segmentation of people into groups that are labeled to describe their economic circumstances. The names of some top-level categories are “power elite,” “flourishing families,” “booming with confidence,” “suburban style,” “rising boomers,” promising families.”  Categories at the bottom, in terms of individuals’ economic circumstances, are “economic challenges,” “aspirational fusion,” “golden year guardians,” “striving forward,” and “urban survivors.”

You might wonder, like I did, which lifestyle description do I fall into according the Experian’s Mosaic segmentation?

Vickery said: “There is very little regulation protecting all of this intense data.”

One information technology representative referred to the present as a time of ‘mega data availability’.

For information about what Vickery recommends to allay some of your fears, go to the Squared Away article to read the entire interview.

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Deciding About Electronic Wills

I have written previously about digital assets and the growing importance of those assets within Estate Planning.  There is much more being written about digital assets as they relate to Estate Planning.

Digital assets are electronic and recently The Colorado Bar Association is taking an intense look at the issues surrounding electronic wills. What is an electronic will?  To simplify for the purpose of this article it is a will/document that is signed and stored electronically.  (Do not confuse this with an on-line  document that one can print and then file in paper form.)

The main points about electronic wills revolve around the signing, witnessing and notarizing of the electronic will. The person making the will (the testator) signs the will electronically (using a computer, tablet or other electronic device), not with pen and ink.  The witnesses (remote witnesses) sign the will electronically (and can be virtually anywhere in the world to do the signing). The will is notarized electronically and one can assume that the will is then stored electronically.

The only state at the time of this writing that permits electronic wills is Nevada. According to an article in Technologist * “Nevada was the first state to authorize electronic wills, and includes safeguards for authentication. It requires that electronic wills be authenticated through finger prints, retinal scan, voice recognition, facial recognition, digital signature or other unique authentication process.”

Do electronic wills simplify the process of making a will? For those who are comfortable with technology and the concept of electronic wills, probably.

Does an electronic will afford adequate protection/privacy/security for the testator? That question remains to be answered. There are matters of safekeeping, privacy, storage and custodianship of an electronic will.

Is an electronic will secure and can it offer the same legal protections as having a paper/hard copy document? That depends upon technology advancements and ongoing legislation.

Can electronic wills stand up to the test of revisions, codicils, and legal challenges from beneficiaries? The jury is still out and each state will be working through legislation on the topic.

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* Will Electronic Wills Be Legal Soon?  By William Vogeler, Esq.  (March 23, 2017)


Digital Assets and Access to Your Digital Life

 I have previously written about digital assets and what happens with those assets when a person dies.  (See my Archived articles under ‘Digital Inheritance”.)

 For a long time, states have sought to provide legislation concerning who might have access to a person’s digital assets (after death).

(Here…We should discriminate between digital assets (which may have value) and tweets, texts and emails to your BFFs, which may have value in your eyes, but do not have intrinsic value as an “asset”.)

According to the * Uniform Code Commission ( there are 17 states in 2017 that have forms of proposed legislation to address digital assets and the access to those assets. 

The legislation varies widely, which indicates how complex such legislation can be.  There is even some proposed legislation that has been “in the works” for over five years.  Some states have adopted the recommendations of the Uniform Code Commission. 

 One major issue surrounding digital assets is –  To what degree a fiduciary will be able to access/control/oversee/manage the digital assets of the person they represent.  To begin we should clarify – What is a Fiduciary?  The term includes in most cases –but not limited to – trustees, personal representatives, executors, those named as power of attorney (agents) and conservators.

 In brief, a fiduciary is a person(s) appointed to manage the property of another person.  Fiduciaries act under strict guidelines and their duty is to act in the other person’s best interest.

 Digital assets may include things of significant value (bit coin accounts; on- line financial account; mileage award accounts; on-line investment accounts; copyrighted material including publications and music to name just a few.)    

 Many states have not yet instituted formal legislation about access to digital assets.  Oher states are attempting to formulate legislation about the control of digital assets.

 To quote the uniform laws website:

 “The Revised Uniform Fiduciary Access to Digital Assets Act (Revised UFADAA) modernizes fiduciary law for the Internet age…” and

 “UFADAA provides legal authority for fiduciaries to manage digital assets in accordance with the user’s estate plan, while protecting a user’s private communications from unwarranted disclosure.”

You can read more about the UFADAA via the uniform laws website.  The Act attempts to provide all states with a uniform code that provides a single legal standard of compliance.

* The ULC (Uniform Law Commission) is a nonprofit formed to create nonpartisan state legislation.

 As digital information grows, the significance of digital assets and how to protect them will increase.  Digital assets is quickly growing as an important facet of estate planning.

 Working To Preserve Your Wealth and Protect Your Future…in a Constantly Changing World

 Please read my full Disclaimer and How I Can Help You

 Visit my website: for more articles and interesting infographics