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Digital assets may be included in estate plan

A person considering estate planning in Massachusetts may want to include provisions concerning an individual’s digital assets. Digital assets are a form of property scarcely conceived of in past decades. As stated by the Uniform Law Commission, digital assets include documents and account data. Digital assets encompass various types of files stored on a person’s local device, such as documents, photos or music, as well as intellectual property on web sites, data on social media accounts, and other data or documents stored in the cloud. Several states have enacted a form of the Revised Uniform Fiduciary Access to Digital Assets Act (Revised UFADAA) but Massachusetts has not.

According to the Massachusetts Bar Association, the law in Massachusetts already provides that digital assets are part of an estate. The challenge for fiduciaries arises particularly in connection with data stored on servers that are not under the control of an estate. When an individual agrees to store, transmit or create data through the use of online services, he or she will often be required to agree to certain terms that include the handling of digital assets when the individual dies. These types of end-user license agreements (EULAs) often state that an individual user owns the rights to the digital assets associated with that individual’s account.

However, in the event of intestacy, which means that an individual has died without any estate planning and the decedent’s estate must be administered through a probate court, an appointed fiduciary may have trouble accessing, or even identifying, the decedent’s digital assets. The value of digital assets may vary greatly but, as more and more individuals incorporate the internet and digital services into their lives, that value could increase in ways not now fully understood.

Most of these issues, if not all, can be avoided through effective estate planning. An estate plan allows a person to identify the location, type, and estimated value of digital assets. A fiduciary empowered through an effective estate plan can more ably access a decedent’s assets and distribute them in accordance with the testator’s intent. 

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