The first vinyl album I remember buying was in 1983. All of my money was in a tin can in my closet. I took a few dollar bills and some change to Mack’s discount department store and paid for the record in cash. It was “Business as Usual” by Men at Work. By the late 80s, I had moved to cassette tapes. By the early 90s, I was buying CDs. At some point, I started buying mp3s. Then I started paying every month so I could listen to whatever I wanted. I became a renter of music. Now instead of carrying 200 cassette tapes with me wherever I go, I plug in my phone. When it comes to music, I have moved from tangible personal property to primarily digital assets to primarily no assets at all.
Records still take up some space in my house. The last vinyl record I bought was a few weeks ago. It was a different experience than when I was 10 years old. It was advertised on Instagram. It was purchased with Venmo. I bought that same tape when it came out in 1989. We already had the right to hear it as long as we keep paying Apple every month. But I wanted to touch it, read the cover, and hear the analog version. I think there will always be a place in the world for vinyl records. I’m not so sure about dollar bills. They may disappear one day. Instead of a can full of quarters and federal reserve notes, I now have a list of passwords. I don’t know where we are headed. But our digital things matter more each day.
My photos are all digital and are stored on a cloud service. I have a dusty Pentax K-1000 somewhere. But I don’t remember how to use it. Most of my personal and professional business is conducted through various email accounts. My social media accounts, Amazon points, bank accounts, and backups of everything are all digital. The list of people who receive emails of this post is a digital asset. The possibilities of how digital will play out in the future are literally endless. And scary.
Most of the world’s central banks are currently studying the idea of digital currencies. Governments could use digital money to control monetary and fiscal policy, eliminate anonymous financial transactions, and even tailor government policy to individual end users. My Venmo account could one day be replaced by a digital wallet issued directly by the Federal Reserve. While the central banks are studying digital currency, some of the smartest people in the world are busy building an alternative financial system. A lot of people are betting on cryptocurrency and other blockchain technology. And many of them are dying without leaving behind instructions or access.
You might not be worried about dying without leaving the private key to your crypto wallet. But someone has to handle your Facebook page and your Gmail account. The tools we use to handle your car, your house, and your record collection in the case of death or disability are all tried and true. Even DMV and Wells Fargo will most likely accept a Power of Attorney or Letters Testamentary. Your digital things may not be as easy.
Fiduciaries may have a problem managing certain digital assets. Your estate plan should be drafted to account for this. Or they may not have access. The Revised Uniform Fiduciary Access to Digital Assets Act was enacted in 2016. It provides specific instructions for the owners of digital assets, their fiduciaries, and the custodian. One important component of this law is that if an online tool directs the custodian of digital information to disclose data to a designated recipient, or not to disclose information, that designation overrides the instruction in your estate planning documents. However, if you have not used such an online tool, you may give this specific authority in your Will, Trust, Power of Attorney, or Digital Assets Release. Several federal laws also govern the intentional access of a computer system or digital assets without authorization. Giving someone a list of passwords is not enough. Every estate plan we create has a Digital Assets Release. That is a minimum. Planning for digital is an ongoing experiment in a rapidly changing world. But it is not something you can ignore.