How to Manage Digital Photos as Part of Your Estate Plan

We live in the digital age, where sharing digital photos on Facebook, Instagram, and Snapchat is commonplace. We store photos on our phones, computers, in the cloud, and in texts.

Since the dawn of the new millennium, we have created massive amounts of data. Yet it was only recently that large numbers of people began amassing digital assets. Facebook and Gmail were launched in 2004. YouTube started in 2005. 2006 saw the advent of Twitter. And the iPhone came out in 2007. While it has been just over a decade since these technologies hit the mainstream, their power to create enormous quantities of data – our digital assets – cannot be underestimated. To put it in perspective, from 2012 to 2014, we produced more data than all of human civilization before that. And the pace is only accelerating.

While it’s not clear what our digital assets will look like in the future, what is clear is that the number of people creating and accumulating data will continue to grow.

Which begs the question: what happens to our digital photos when we die?

The Law on How to Handle Your Digital Assets Continues to Evolve

Estate planning and probate law is fairly clear when it comes to paper documents and physical assets. We create an estate plan using some combination of a Will, a Trust, and a Power of Attorney. These estate planning documents have stood the test of time. Courts are familiar with them, and generally process them without too much difficulty.

The law on digital assets, however, is less clear, and is constantly evolving as new technologies emerge. Nonetheless, it’s important to consider your digital assets, and specifically your digital photos, as you prepare your estate plan.

A Digital Estate Plan Can Reduce the Likelihood of Arguments Between Family Members

Historically, photographs and other items of sentimental value were often overlooked. Because these items have little monetary value, they are often not included in a person’s estate plan. Nonetheless, these items have great sentimental importance and, when possible, should be shared among family members who would like them.

It’s not uncommon for siblings and other beneficiaries to disagree about who receives what. In some cases, these disagreements cause damage to relationships. Before distributing items of a sentimental value, it can be helpful for everyone to have a conversation about how to share these items so that everyone is on the same page.

However, you can also take control over how your digital assets, and especially your digital photos, will be handled upon your death. In some ways, the digital age makes sharing items of sentimental value easier. Rather than having siblings argue over who gets the sole print of a special family photograph, you can create a digital estate plan that allows you to share digital photos with anyone who wants them.

Make a Plan for Sharing Your Digital Photos

Regardless of whether your digital assets have monetary or sentimental value, it’s important to designate who will access and manage your digital estate. It’s important to plan for what happens if you are incapacitated, as well as what will happen once you have passed away.

Many people now have massive collections of digital photos that your family will want to access. Historically these assets were tangible – you had to decide who got what photo. Today, it’s easier to share the same asset between multiple people by making a copy. But you need to designate who will be in control of your digital estate to act as the point person in handling your digital affairs.

Ohio Adopted the Revised Uniform Fiduciary Access to Digital Assets Act

In 2017, Ohio adopted the Revised Uniform Fiduciary Access to Digital Assets Act to address digitally stored data, whether stored online, on a device, on a computer, on the cloud, or in email accounts.

The Revised Uniform Fiduciary Access to Digital Assets Act went into effect on April 6, 2017 and:

• Defines a “digital asset” as an “electronic record in which an individual has a right or interest.” However, digital assets do not include an underlying asset or liability unless the asset or liability is itself an electronic record;
• Allows individuals to grant legal authority to others to gain access to digital assets and the content of electronic communications;
• Grants agents expanded authority under a power of attorney to deal with digital assets and electronic communications;
• Recognizes “online tools” that may be offered by a service provider who maintains a digital asset (defined as “custodians” under the law), where the user can direct the custodian to either disclose or not disclose some or all of the user’s digital assets to a fiduciary, including electronic communications to/from the user;
• Permits individuals to use a Will, Trust, Power of Attorney, or “other record” to allow or prohibit disclosure to a fiduciary of some or all of a user’s digital assets, including the content of electronic communications sent or received by the user; and
• Provides a framework to resolve conflicting instructions about handling digital assets across terms-of-service agreements, online tools, and/or a will, trust or power of attorney.

Under the Act you can now appoint a fiduciary who will have the authority to access and use your digital assets upon your death or incapacitation. It’s important that the fiduciary know where and how to access your digital assets. You must also plan for what you want done with these items.

Your fiduciary will also act as a gatekeeper and should use discretion about what you may or may not have wanted family members or close friends to see. For example, many people store photographs on their phones, computers, or elsewhere that they may not want everyone to see. Therefore, it’s important to choose a fiduciary executor who will be sensitive to your wishes.

Questions About Including Digital Photos in Your Estate Plan?Contact Wolfe Legal Services Today

If you have questions about how to include digital photos in your estate plan, contact Wolfe Legal Servicestoday.

I have more than 23 years experience providing probate and estate planning services to people throughout greater Columbus, including Dublin, Worthington, Westerville, Bexley, Delaware, Upper Arlington, New Albany, Marysville, Hilliard, Delaware, and Newark, and throughout Franklin County, Delaware County, Pickaway County, Fairfield County, Union County, and Licking County. Call or Text (614) 263-5297 any time or complete our secure, confidential, and free online form located on the home page.