It’s sometimes said that Texas law is “evolutionary;” it’s rarely “revolutionary.” That is to say the law favors stability, but sometimes at the cost of flexibility. One area where Texas law may be falling a bit behind is in the state’s handling of “digital assets” – files and data stored in a digital (electronic) format on a third party server. Current Texas law is a bit hazy regarding the handling of digital assets following the “owner’s” death. Should Texas residents be concerned? How should digital assets be handled in an estate plan?
Initially, of course, one should recognize what a digital asset is, and what it is not. In general, digital assets are data and information stored on sites such as Facebook, Instagram, and LinkedIn. If you backup your desktop or laptop data to Dropbox, Google Drive, or iCloud Drive, then that information is a digital asset, as is the intellectual property that you may have in the form of blog articles or other online writing.
It is important to note that the data about your online stock brokerage account or checking account may be considered a digital asset; the underlying shares of stock or cash are not digital assets.
Unfortunately, in a state such as Texas, digital assets may become inaccessible following the death of the owner. To repeat, this doesn’t affect the cash in an account or stock or bonds held by a brokerage account, but it does mean the thousand or so photos that you have stored may be lost. The executor of an estate who contacts Dropbox and requests that the deceased’s information be released to him or her can be surprised that the information is governed not by the will of the deceased, but by the original agreement between Dropbox and the deceased. That agreement may not allow for the transfer of information to anyone.
If the executor has the correct account and password information, it may be possible to access the data, download it, and then have it stored in some other account. In fact, as long as a Texas resident is comfortable doing so, it is helpful to keep a paper list of all accounts and access information handy so that loved ones can retrieve information following death. One should never, of course, put the account information in one’s will. When probated, the will be public record and accessible by any curious soul.
Even though Texas law does not yet specifically provide for the distribution of digital assets, it is still advisable that one’s will include some discussion as to their access, transfer, and disposition. This will prevent disagreement later among the heirs. Attorneys suggest that each person create an inventory of digital assets, including flash drives and software, and identify the person or persons who should take control of the digital assets after death.
Does your current estate plan include sufficient discussion of digital assets? Have you reviewed your estate plan recently? Are you concerned about the distribution of any of your assets following your death? Procrastination is the great enemy of estate planning.
The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients. We represent clients in all types of transactions, including estate planning, will preparation, and the creation of appropriate trust documents. Since we have extensive experience in litigation, we can help you avoid bitter battles between heirs. At Romano & Sumner, we pride ourselves not only upon our professionalism, but upon our client service. We return phone calls within one business day. We keep clients informed. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.
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