• They are accessible only through an electronic device.
• They include content that is uploaded to a website.
When uploading something to a site like Facebook, the Terms of Service Agreement dictates the conditions. The problem is that few people read those agreements and they are usually in favor of the vendor, provider or what Ploss referred to as the custodian. In some cases, they actually transfer the ownership to the custodian. He gave Facebook and Snapchat as examples.
Some digital assets are under a user license that expires on user’s death unless there is some kind of joint account set up that allows others to continue to have access.
Thanks to RUFADAA, there is more clarity around digital rights and what people have rights to, but Ploss warns that if something is transferred to Facebook, it falls under the Terms of Service Agreement.
He added RUFADAA provides access, management and potential transfer of a copy of the digital asset by a fiduciary, pointing out four types: agent under durable power of attorney, court appointed conservator or guardian, personal representative of decedent’s estate and a trustee under a trust agreement/declaration.
What Should Financial Planners Help With?
Ploss recommended five steps needed when working with clients:
• Step 1: Identification of digital assets. “What do client have out there?” asked Ploss. Things like PayPal might actually have money on them.
• Step 2: Educate the client about the law. “The client doesn’t understand what is out there,” he stated.