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Robertson, Oswalt, Nony

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Who owns my material in the cloud after I die?

| Nov 30, 2016 | Estate Planning, Firm News

Security is a big deal. It doesn’t matter where you live. No one in Little Rock or anywhere else in Arkansas would think about leaving their home without locking the door. These days, a whole other realm demands just as much attention.

Cybersecurity is something that nearly everyone is likely aware of in this digital age. What many may be unaware of are the estate planning challenges possible if a person dies without leaving instructions regarding who should have access to what digital assets and all the account information that is required to get at those assets.

What, you may ask, could be affected if you overlook this particular area of estate planning? The answers might surprise you. These days, more is stored on the so-called “cloud” than many people might imagine. Here’s a list of just a few:

  • Photos of yourself and loved ones on Facebook or other social media sites
  • Emails you’ve sent to friends, relatives or business agents
  • Financial records of various kinds

Some items may only have sentimental value to heirs of a dead loved one, but some could represent something much more significant. But in the current legal environment, if an account owner doesn’t provide permissions through a will or other legally defensible document, those accounts could remain out of reach.

The hurdle in many cases is that companies who provide cloud-based services claim out-of-date federal privacy law prevents them from opening accounts without the owner’s permission – even if the owner is dead. Some states have begun to pass legislation providing guidance to internet firms about what they can and cannot release after an account holder’s death. But the laws, where they exist, vary and interstate jurisdictional battles can occur.

What is apparent is that prudent planning requires casting as broad a net as possible and working with experienced legal counsel becomes invaluable.

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