The Elder Law Coach

Preserving Your Digital Legacy: Navigating Digital Assets in Modern Estate Planning with Todd Whatley

• Todd Whatley

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Digital assets are becoming an essential component of estate planning, yet many clients do not realize their significance. This episode discusses practical steps and legal considerations for addressing digital assets in elder law.

• Importance of planning for digital assets 
• Conducting a digital asset inventory 
• Challenges of accessing digital assets posthumously 
• Creating a digital asset access plan 
• Overview of RUFADA and its implications 
• Social media legacy contacts and manager settings 
• Encouraging client education around digital asset management

Article to review: https://trustandwill.com/learn/what-is-rufadaa?srsltid=AfmBOork0KxFsQpnlo8Z4DFFyElKbEl39Bgnt59rvfsRRqHNX3UnKDGa

Check out our new website www.TheElderLawCoach.com.

Speaker 1:

Thank you. Specialized experience, Whether you're an established attorney looking to refine your expertise or an emerging lawyer seeking a successful foray into elder law, this is your masterclass. Now let's get started with the luminary in the field. Here's Todd Whatley.

Speaker 2:

That's right. This is the Elder Law Coach. My name is Todd Whatley. Thank you once again for joining us today, and today we're going to talk about something that maybe, as an elder law attorney, a lot of your clients aren't dealing with, but I am seeing more and more of it every day, particularly since we have started doing some younger client estate plans, and this is the issue of digital assets. All right, I am by far not the expert on this. Okay, I will tell you, there are probably people out there that delve into this way deeper than I do, but I do want to talk about it and I've done a fair amount of research on this, and so I think I can talk intelligently about it. And, mainly, the bottom line is we need to bring this up with clients and we need to make sure that they are aware of the issues and take steps to make sure that this is taken care of.

Speaker 2:

All right, I mean, there is definitely a rise in digital things. Okay, um, you know, I mean this is anything from social media, email, cryptocurrency, nfts, digital photos, online subscription services, domain names all the things digital, and you might find some some of our older clients, but particularly our younger clients they are very much invested in social media. Sometimes. You know online gaming, you know there's some benefits and rewards there that they don't want to lose, and it's just kind of crazy. And I would think, particularly with our clients. They have digital photos on their phones. They may have it set up. Their kids may have set it up so that it automatically uploads to Google or Yahoo or somewhere so that they can store those photos, and it would be a shame if those photos got lost. So how do we deal with that? Okay? Number one we need to bring this up to clients and let them realize that if they are very techie, if they have done some things to store things on their Facebook account you know, recipes, photos, things like that they need to understand that this is going to be an issue once they pass away, if they want those things to get passed on to someone else. Okay, it's intangible and it's very easy to overlook these things, but I think it definitely is something that these things, but I think it definitely is something that we, as elder law and estate planning attorneys, need to bring up. Okay, so why does this matter? All right. Number one there are tremendous emotional and financial issues with digital assets.

Speaker 2:

Like it or not, a lot of things are stored digitally. It is interesting this past weekend my grandson, who just turned five, he was digging through cabinets and he brought a big photo album, big, big old photo album, plopped it down and we started flipping through it and that was really cool to him. He's like, wow, this is kind of cool, actual pictures in a book with plastic things to stick it to it. And that was really cool to him. He's like, wow, this is kind of cool, you know, actual pictures in a book, you know, with plastic things to stick it to it. You know he was, he was going through that and looking at it and it was, it was kind of cool. But you know they definitely go through our phones. They'll grab our phones and start whirling through the pictures and so there's there's huge emotional issues there, particularly with photos.

Speaker 2:

But sometimes online services you know there will be communications with people in Facebook Messenger. You know, just going through all of the social media. Many times we would hate for that to just simply disappear and us not have access to it once someone passes away. So access is the issue. This challenges families when someone passes away of how do we get to this? Where is the access? And if you're like my mom, who died in 2016, you know she had all of her passwords written down on a piece of paper in her desk and she would change it. You know when they would force her to change it, or you know she would. We were always fighting over passwords and things, and so I'd say, mom, what's the password to this account? I don't know. And she'd start flipping through this book and it just drives me crazy flipping through this book and it just drives me crazy. And so you know they they deal with it differently than the younger generation does, but you've got to figure out something that will allow them access and and by providing passwords and IDs to these accounts. Okay, they're not lost when the person dies, unless we can't get to it. And so you know you want to make sure that you know it might as well be lost if you can't get to it, and so, therefore, we want to avoid loss or avoid the inability to get to these.

Speaker 2:

So one of the first steps you need to do is conduct a digital asset inventory. Have people sit down and go through where you know Instagram, are you on Facebook Messenger? Are you on Facebook? Where do you spend your time and where have you put these things? In the end, we need to make sure that, ideally, the best way is to make sure someone has the ID and password to get to those. But then it becomes important who do you want to have access? And you need to make sure that person has the access to that so that they can kind of play like they're you and go in there and get it, you being the now dead person and so being able to go in and get that. But then sometimes people don't want to share current ID and passwords with people because they may have things that are private, and it becomes a real balancing act between well, do I trust this person to do it now? I definitely want them to be able to do it when I pass away, depending on what they find. Maybe better once you're dead and they find it than if you're alive and they find it.

Speaker 2:

So there's a lot of tricky things there that we have to be careful about, things there that we have to be careful about, and one of the best ways to deal with this in an estate plan is get the inventory and then create a digital asset plan specifying who gets access and what should be done with these assets. And thankfully you can put that into your documents. And so I just went through and double checked my power of attorney that I create for people and, as you probably know, I use interactive legal services and their standard template when we say yes, we want all the powers in there. Ils has language in there dealing with digital assets and I can basically I'll read to you real quick what they say. It's one of the powers and it's called digital assets, accounts and devices. I authorize my agent to take any action with respect to my digital assets, digital accounts and digital devices, as my agent deems necessary or appropriate and shall be permitted by applicable federal, state or international law giving due effect to the authorization provided in this paragraph. This authority shall include, but shall not be limited to, the authority to access or control any digital device, including computer, camera, telephone or data storage device owned or lawfully used by me. Just goes on and on and on.

Speaker 2:

And so I think what I just learned okay, and you know I learned by doing this is there is a federal law that was passed and it was revised because it was not done the best way the first time, of course, but it's called the Revised Uniform Fiduciary Access to Digital Assets Act RUFADAA, rufada, we'll call it. I don't know what y'all call it, but I'm going to call it RUFADA. And it is a law that was passed and a lot of states have passed it, and I will post a link in the show notes showing the link that I found is from trustandwillcom and it's basically it. Just you know it talks about it, and then I think what you need to jump to is go to that page and scroll down to the bottom and it has RUFADA laws by state to the bottom, and it has RUFADA laws by state, and so it lists all the states that have passed this and a link to their statute. And I was just noticing Arkansas.

Speaker 2:

It's kind of tends to be behind a lot and they were about a year later than most places. We passed it in April 4th, 2017. I see a lot of states pass this in 2016. So we're a few years, or a year to a few years. I see Delaware passed something in 2014, georgia 2018. So most states have passed some version of this and it basically is forcing these companies, like Facebook and Instagram or whatever, to allow this.

Speaker 2:

There has to be something in writing that allows a person or a named person to do this, and if it is in your power of attorney, the bank should follow the instructions of the power of attorney and let the agent do things. But sometimes it's got to be reviewed by legal and it's going to take time, whereas if you name that child as a signatory on that bank account or whatever, the person can walk in and prove who they are and instantly they can do things with that account. The same thing applies to most digital platforms. There is a way that you can go in and to those platforms and fill out a form to say I authorize you to let this person do things, and that's absolutely going to be the preferred method of doing this. And I know this article talks about.

Speaker 2:

Google's inactive account manager allows Google users to designate a trusted contact who would gain access to an account after a certain period of inactivity. A user may also choose to have information permanently deleted. Google detects inactivity by your last sign-ins, recent activity, usage of Gmail on the web or in-app and Android check-ins. Okay, so you have to be inactive. I don't know how long that is I didn't click the link to see, but this article has a link to that. And then Facebook's legacy contacts allows a user to designate someone they trust to manage their account after death, while not giving full access to the account. A legacy contact can write a pin post for someone's profile and update their profile and cover photos. They can also request the removal of a user's account. A legacy contact cannot read a user's private messages or remove past posts or friends.

Speaker 2:

I will tell you my mother was very involved in Facebook. She did not do this. She did not go in and name me as the person who could do that and I've given up. I cannot change her account. I've tried, I've sent them death certificates, I've done everything and they simply will not do anything and her account's been stolen a number of times. These 25-year-old voluptuous women show up as my mom and start messaging everyone and everybody's like oh, but you just have to laugh because you know scammers are out there and it's just so frustrating that that Facebook won't take a death certificate and just shut it down. I don't know what their motive is and keeping it up and going. I tried, like I said she. She's been gone eight years now, um almost nine years, and I can't get it shut down. I've just given up. I don't care anymore. Everyone who was her friend knows she's died and if they get something from Judy Whatley, they know it's fake.

Speaker 2:

So but that is the best thing to do is is have your clients remind your clients of this and and go to those places where they do stuff. Almost everyone has a Gmail account, and a lot of older people have Facebook, and they need to go there and figure that out, and this article that I've attached in the show notes will show you how to do that. Ok, and I'm going to start doing this. I have not done this in the past, but I will go in and and start doing that. Okay, and I'm going to start doing this. I have not done this in the past, but I will go in and start doing that. So, practical steps Okay, educate our clients about the importance of planning for digital assets.

Speaker 2:

We need to bring this up to them. If you have a fund excuse me, a funding coordinator I would have the funding coordinator bring this up and say, look, let's, let's go make sure this is taken care of. Okay, use the software, tools and and resources that are out there, that are on these sites, to help them do that and possibly collaborating with tech savvy professionals or services that specialize in digital asset management. I I'm sure there are companies out there that will help us do that Get the passwords and the access to these to someone that you trust. Put it somewhere safe. Problem is, they change and you go back and change those passwords and most people don't, okay, and so it's just one of those things that it's extremely frustrating. Okay, that we have to do this and we don't do it well, and it is difficult to do well, and so it's just something I want to bring up and, you know, throw more stress in your day. It's like what more can we advise our clients of? But this is one of those things that definitely need to be done.

Speaker 2:

I haven't talked about cryptocurrency, but you know, most people who do any type of cryptocurrency know that they have to have their blockchain and digital ownership stuff, and if that gets lost, it's gone. Okay, I don't, you know, I I am still not familiar with what happens to it once you cannot get access to it, but it's. You know, that's just a whole different thing of you know, um, cryptocurrency in that, but make sure your people know not to lose their access to that, because if you do, there's really no way of getting that back. All right. So I encourage you to stay informed.

Speaker 2:

If you're an older attorney and you're like I don't do this, I'm not going to worry about it, well, I can almost bet you that your clients do, and this is something that you need to be aware of and you need to work on and help do that. So I do coaching. I help clients understand this. I will be glad to help you through this. If this is something that you're just totally clueless on, yeah, give me a call. If this is something that you're just totally clueless on, yeah, give me a call. I can share the language that is in my power of attorney that talks about that and can hopefully get you started in some of that direction. But I just encourage you, talk to your clients about it. Make sure that they are familiar that this can be a problem and it is something that needs to be addressed. All right, I would love to be your coach. I would love to work with you. Please visit the elder law coachcom and there there are links there that you can schedule an appointment. I would love to talk to you.

Speaker 2:

No pressure, I promise I actually talk people out of hiring me more than I care to think about just because I just I don't think they're ready yet.

Speaker 2:

You know their practice is super busy with non-ELDA law things and they're not willing to give that up to do ELDA law or they're just not. You know, I don't know, there's just different things that after we talk I will tell you if this is a good fit. But there's quite a few folks I'm like you need to do this and this and this before we can talk about doing coaching, because it's not cheap. It's $1,500 a month for a year's commitment and I want you to get your money's worth. I want you to do what needs to be done, and so I am not going to talk you into doing it if it's not something that would definitely benefit you, and if it's, if we're not a good match, okay. So give me a call, go on to the website, schedule a call, we'll talk and if we fit, we fit. If not, we don't. Okay, keep listening to the podcast. Please subscribe and I will see you next time.

Speaker 1:

Thank you for joining this episode of the Elder Law Coach Podcast. For those eager to take their elder law practice to new heights and are interested in Todd's acclaimed coaching program, visit wwwTheElderLawCoachcom. With Todd Whatley by your side, the journey to becoming an elder law authority has never been more achievable. Until next time, keep learning, keep growing and stay passionate about elder law.