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January 18, 2025 20 mins

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Digital assets are becoming an essential component of estate planning, yet many clients do not realize their significance. This episode discusses practical steps and legal considerations for addressing digital assets in elder law.

• Importance of planning for digital assets 
• Conducting a digital asset inventory 
• Challenges of accessing digital assets posthumously 
• Creating a digital asset access plan 
• Overview of RUFADA and its implications 
• Social media legacy contacts and manager settings 
• Encouraging client education around digital asset management

Article to review: https://trustandwill.com/learn/what-is-rufadaa?srsltid=AfmBOork0KxFsQpnlo8Z4DFFyElKbEl39Bgnt59rvfsRRqHNX3UnKDGa

Check out our new website www.TheElderLawCoach.com.

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Episode Transcript

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Speaker 1 (00:19):
Thank you.
Specialized experience, Whetheryou're an established attorney
looking to refine your expertiseor an emerging lawyer seeking a
successful foray into elder law, this is your masterclass.
Now let's get started with theluminary in the field.
Here's Todd Whatley.

Speaker 2 (00:38):
That's right.
This is the Elder Law Coach.
My name is Todd Whatley.
Thank you once again forjoining us today, and today
we're going to talk aboutsomething that maybe, as an
elder law attorney, a lot ofyour clients aren't dealing with
, but I am seeing more and moreof it every day, particularly
since we have started doing someyounger client estate plans,

(00:59):
and this is the issue of digitalassets.
All right, I am by far not theexpert on this.
Okay, I will tell you, thereare probably people out there
that delve into this way deeperthan I do, but I do want to talk
about it and I've done a fairamount of research on this, and
so I think I can talkintelligently about it.

(01:22):
And, mainly, the bottom line iswe need to bring this up with
clients and we need to make surethat they are aware of the
issues and take steps to makesure that this is taken care of.
All right, I mean, there isdefinitely a rise in digital

(01:43):
things.
Okay, um, you know, I mean thisis anything from social media,
email, cryptocurrency, nfts,digital photos, online
subscription services, domainnames all the things digital,
and you might find some some ofour older clients, but

(02:04):
particularly our younger clientsthey are very much invested in
social media.
Sometimes.
You know online gaming, youknow there's some benefits and
rewards there that they don'twant to lose, and it's just kind
of crazy.
And I would think, particularlywith our clients.
They have digital photos ontheir phones.

(02:26):
They may have it set up.
Their kids may have set it upso that it automatically uploads
to Google or Yahoo or somewhereso that they can store those
photos, and it would be a shameif those photos got lost.
So how do we deal with that?
Okay?
Number one we need to bringthis up to clients and let them

(02:50):
realize that if they are verytechie, if they have done some
things to store things on theirFacebook account you know,
recipes, photos, things likethat they need to understand
that this is going to be anissue once they pass away, if
they want those things to getpassed on to someone else.

(03:14):
Okay, it's intangible and it'svery easy to overlook these
things, but I think itdefinitely is something that
these things, but I think itdefinitely is something that we,
as elder law and estateplanning attorneys, need to
bring up.
Okay, so why does this matter?
All right.
Number one there are tremendousemotional and financial issues

(03:37):
with digital assets.
Like it or not, a lot of thingsare stored digitally.
It is interesting this pastweekend my grandson, who just
turned five, he was diggingthrough cabinets and he brought
a big photo album, big, big oldphoto album, plopped it down and

(03:58):
we started flipping through itand that was really cool to him.
He's like, wow, this is kind ofcool, actual pictures in a book
with plastic things to stick itto it.
And that was really cool to him.
He's like, wow, this is kind ofcool, you know, actual pictures
in a book, you know, withplastic things to stick it to it
.
You know he was, he was goingthrough that and looking at it
and it was, it was kind of cool.
But you know they definitely gothrough our phones.
They'll grab our phones andstart whirling through the
pictures and so there's there'shuge emotional issues there,

(04:22):
particularly with photos.
But sometimes online servicesyou know there will be
communications with people inFacebook Messenger.
You know, just going throughall of the social media.
Many times we would hate forthat to just simply disappear
and us not have access to itonce someone passes away.

(04:45):
So access is the issue.
This challenges families whensomeone passes away of how do we
get to this?
Where is the access?
And if you're like my mom, whodied in 2016, you know she had
all of her passwords writtendown on a piece of paper in her

(05:06):
desk and she would change it.
You know when they would forceher to change it, or you know
she would.
We were always fighting overpasswords and things, and so I'd
say, mom, what's the passwordto this account?
I don't know.
And she'd start flippingthrough this book and it just
drives me crazy flipping throughthis book and it just drives me

(05:27):
crazy.
And so you know they they dealwith it differently than the
younger generation does, butyou've got to figure out
something that will allow themaccess and and by providing
passwords and IDs to theseaccounts.
Okay, they're not lost when theperson dies, unless we can't

(05:52):
get to it.
And so you know you want tomake sure that you know it might
as well be lost if you can'tget to it, and so, therefore, we
want to avoid loss or avoid theinability to get to these.
So one of the first steps youneed to do is conduct a digital

(06:14):
asset inventory.
Have people sit down and gothrough where you know Instagram
, are you on Facebook Messenger?
Are you on Facebook?
Where do you spend your timeand where have you put these
things?
In the end, we need to makesure that, ideally, the best way

(06:36):
is to make sure someone has theID and password to get to those
.
But then it becomes importantwho do you want to have access?
And you need to make sure thatperson has the access to that so
that they can kind of play likethey're you and go in there and

(06:58):
get it, you being the now deadperson and so being able to go
in and get that.
But then sometimes people don'twant to share current ID and
passwords with people becausethey may have things that are
private, and it becomes a realbalancing act between well, do I
trust this person to do it now?
I definitely want them to beable to do it when I pass away,

(07:21):
depending on what they find.
Maybe better once you're deadand they find it than if you're
alive and they find it.
So there's a lot of trickythings there that we have to be
careful about, things there thatwe have to be careful about,
and one of the best ways to dealwith this in an estate plan is

(07:42):
get the inventory and thencreate a digital asset plan
specifying who gets access andwhat should be done with these
assets.
And thankfully you can put thatinto your documents.
And so I just went through anddouble checked my power of
attorney that I create forpeople and, as you probably know

(08:05):
, I use interactive legalservices and their standard
template when we say yes, wewant all the powers in there.
Ils has language in theredealing with digital assets and
I can basically I'll read to youreal quick what they say.
It's one of the powers and it'scalled digital assets, accounts

(08:30):
and devices.
I authorize my agent to takeany action with respect to my
digital assets, digital accountsand digital devices, as my
agent deems necessary orappropriate and shall be
permitted by applicable federal,state or international law
giving due effect to theauthorization provided in this

(08:52):
paragraph.
This authority shall include,but shall not be limited to, the
authority to access or controlany digital device, including
computer, camera, telephone ordata storage device owned or
lawfully used by me.
Just goes on and on and on.
And so I think what I justlearned okay, and you know I

(09:14):
learned by doing this is thereis a federal law that was passed
and it was revised because itwas not done the best way the
first time, of course, but it'scalled the Revised Uniform
Fiduciary Access to DigitalAssets Act RUFADAA, rufada,

(09:39):
we'll call it.
I don't know what y'all call it, but I'm going to call it
RUFADA.
And it is a law that was passedand a lot of states have passed
it, and I will post a link inthe show notes showing the link
that I found is fromtrustandwillcom and it's

(10:01):
basically it.
Just you know it talks about it, and then I think what you need
to jump to is go to that pageand scroll down to the bottom
and it has RUFADA laws by stateto the bottom, and it has RUFADA
laws by state, and so it listsall the states that have passed

(10:23):
this and a link to their statute.
And I was just noticingArkansas.
It's kind of tends to be behinda lot and they were about a year
later than most places.
We passed it in April 4th, 2017.
I see a lot of states pass thisin 2016.
So we're a few years, or a yearto a few years.

(10:44):
I see Delaware passed somethingin 2014, georgia 2018.
So most states have passed someversion of this and it
basically is forcing thesecompanies, like Facebook and
Instagram or whatever, to allowthis.

(11:05):
There has to be something inwriting that allows a person or
a named person to do this, andif it is in your power of

(11:33):
attorney, the bank should followthe instructions of the power
of attorney and let the agent dothings.
But sometimes it's got to bereviewed by legal and it's going
to take time, whereas if youname that child as a signatory
on that bank account or whatever, the person can walk in and

(11:54):
prove who they are and instantlythey can do things with that
account.
The same thing applies to mostdigital platforms.
There is a way that you can goin and to those platforms and
fill out a form to say Iauthorize you to let this person
do things, and that'sabsolutely going to be the

(12:16):
preferred method of doing this.
And I know this article talksabout.
Google's inactive accountmanager allows Google users to
designate a trusted contact whowould gain access to an account
after a certain period ofinactivity.
A user may also choose to haveinformation permanently deleted.
Google detects inactivity byyour last sign-ins, recent

(12:39):
activity, usage of Gmail on theweb or in-app and Android
check-ins.
Okay, so you have to beinactive.
I don't know how long that is Ididn't click the link to see,
but this article has a link tothat.

(12:59):
And then Facebook's legacycontacts allows a user to
designate someone they trust tomanage their account after death
, while not giving full accessto the account.
A legacy contact can write apin post for someone's profile
and update their profile andcover photos.
They can also request theremoval of a user's account.
A legacy contact cannot read auser's private messages or

(13:20):
remove past posts or friends.
I will tell you my mother wasvery involved in Facebook.
She did not do this.
She did not go in and name meas the person who could do that
and I've given up.
I cannot change her account.
I've tried, I've sent themdeath certificates, I've done
everything and they simply willnot do anything and her

(13:45):
account's been stolen a numberof times.
These 25-year-old voluptuouswomen show up as my mom and
start messaging everyone andeverybody's like oh, but you
just have to laugh because youknow scammers are out there and

(14:10):
it's just so frustrating thatthat Facebook won't take a death
certificate and just shut itdown.
I don't know what their motiveis and keeping it up and going.
I tried, like I said she.
She's been gone eight years now, um almost nine years, and I
can't get it shut down.
I've just given up.
I don't care anymore.

(14:30):
Everyone who was her friendknows she's died and if they get
something from Judy Whatley,they know it's fake.
So but that is the best thing todo is is have your clients
remind your clients of this andand go to those places where
they do stuff.
Almost everyone has a Gmailaccount, and a lot of older

(14:52):
people have Facebook, and theyneed to go there and figure that
out, and this article that I'veattached in the show notes will
show you how to do that.
Ok, and I'm going to startdoing this.
I have not done this in thepast, but I will go in and and
start doing that.
Okay, and I'm going to startdoing this.
I have not done this in thepast, but I will go in and start
doing that.
So, practical steps Okay,educate our clients about the

(15:16):
importance of planning fordigital assets.
We need to bring this up to them.
If you have a fund excuse me, afunding coordinator I would
have the funding coordinatorbring this up and say, look,
let's, let's go make sure thisis taken care of.
Okay, use the software, toolsand and resources that are out

(15:38):
there, that are on these sites,to help them do that and
possibly collaborating with techsavvy professionals or services
that specialize in digitalasset management.
I I'm sure there are companiesout there that will help us do
that Get the passwords and theaccess to these to someone that
you trust.

(15:59):
Put it somewhere safe.
Problem is, they change and yougo back and change those
passwords and most people don't,okay, and so it's just one of
those things that it's extremelyfrustrating.
Okay, that we have to do thisand we don't do it well, and it

(16:20):
is difficult to do well, and soit's just something I want to
bring up and, you know, throwmore stress in your day.
It's like what more can weadvise our clients of?
But this is one of those thingsthat definitely need to be done
.
I haven't talked aboutcryptocurrency, but you know,
most people who do any type ofcryptocurrency know that they

(16:42):
have to have their blockchainand digital ownership stuff, and
if that gets lost, it's gone.
Okay, I don't, you know, I I amstill not familiar with what
happens to it once you cannotget access to it, but it's.
You know, that's just a wholedifferent thing of you know, um,

(17:03):
cryptocurrency in that, butmake sure your people know not
to lose their access to that,because if you do, there's
really no way of getting thatback.
All right.
So I encourage you to stayinformed.
If you're an older attorney andyou're like I don't do this, I'm

(17:25):
not going to worry about it,well, I can almost bet you that
your clients do, and this issomething that you need to be
aware of and you need to work onand help do that.
So I do coaching.
I help clients understand this.
I will be glad to help youthrough this.
If this is something thatyou're just totally clueless on,

(17:46):
yeah, give me a call.
If this is something thatyou're just totally clueless on,
yeah, give me a call.
I can share the language thatis in my power of attorney that
talks about that and canhopefully get you started in
some of that direction.
But I just encourage you, talkto your clients about it.
Make sure that they arefamiliar that this can be a
problem and it is something thatneeds to be addressed.

(18:08):
All right, I would love to beyour coach.
I would love to work with you.
Please visit the elder lawcoachcom and there there are
links there that you canschedule an appointment.
I would love to talk to you.
No pressure, I promise Iactually talk people out of

(18:28):
hiring me more than I care tothink about just because I just
I don't think they're ready yet.
You know their practice is superbusy with non-ELDA law things
and they're not willing to givethat up to do ELDA law or
they're just not.
You know, I don't know, there'sjust different things that
after we talk I will tell you ifthis is a good fit.
But there's quite a few folksI'm like you need to do this and

(18:52):
this and this before we cantalk about doing coaching,
because it's not cheap.
It's $1,500 a month for ayear's commitment and I want you
to get your money's worth.
I want you to do what needs tobe done, and so I am not going
to talk you into doing it ifit's not something that would
definitely benefit you, and ifit's, if we're not a good match,

(19:14):
okay.
So give me a call, go on to thewebsite, schedule a call, we'll
talk and if we fit, we fit.
If not, we don't.
Okay, keep listening to thepodcast.
Please subscribe and I will seeyou next time.

Speaker 1 (19:31):
Thank you for joining this episode of the Elder Law
Coach Podcast.
For those eager to take theirelder law practice to new
heights and are interested inTodd's acclaimed coaching
program, visitwwwTheElderLawCoachcom.
With Todd Whatley by your side,the journey to becoming an
elder law authority has neverbeen more achievable.
Until next time, keep learning,keep growing and stay

(19:55):
passionate about elder law.
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