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Guide to Computer Law—Number 289

Practitioner’s Perspective

by Holly K. Towle, J.D.

Estate Planning in a Digital Age

Holly K. Towle, Scott David and Pat Char*

Computers and other new technologies have radically altered the conduct of commerce and will also affect estate planning relating to digital assets. Think of the ways that you and your clients already use these technologies:

Holly K. Towle is a partner with Kirpatrick & Lockhart Preston Gates Ellis LLP (K&L Gates), an international law firm, and chair of the firm’s E-merging Commerce group. Holly is located in the firm’s Seattle office and is the coauthor of The Law of Electronic Commercial Transactions (2003, A.S. Pratt & Sons). Holly.Towle@KLgates.com, 206-623-7580.

You use e-mail at work (including personal emails and attachments); You have additional e-mail accounts and might have personal, family or “moonlighting” business websites; You have important records (formerly kept in your safe deposit box) stashed in your computer or other electronic devices; You have digital pictures stored in your camera, at work, on CDs or online; You may have a library of music, movies, games, computer software or other digital works stored in numerous places (e.g., home, work, hand- held devices, online accounts); or You have online accounts such as brokerage and bank accounts.

*Scott David and Pat Char are partners in K&L Gates Seattle office. Scott practices in both the tax group and in the electronic commerce group. Scott.David@klgates.com. Pat’s practice focuses on the area of trust and estates. Pat.Char@klgates.com.

How are you going to leave any or all of these assets to your heirs? Your executor may be your spouse, significant other, son or daughter or other relative, family friend, lawyer or trust company —do you want that person to read or see all of the above? Even if you do, how will they locate them and get access?

The broad use of digital and electronic products and services has myriad implications, including for the deceased, heirs, employers, service providers and estate planners. This article explores some of those estate planning implications.

The New Reality Historically, estate planning focused on two broad groups of assets: tangible property and intangible property (such as accounts and stocks or bonds). Occasionally, estate planners dealing with artists (e.g., writers or musicians) and inventors were faced with issues arising in copyright, trademark or patent law. Now everyone is faced with those issues, as well as issues relevant to information services and digitized data not protected by copyright law. Some of the fundamental differences between digital and traditional assets are:

Practitioner’s Perspective appears periodically in the monthly Report Letter of the CCH Guide to Computer Law. Various practitioners providein- depth analyses of significant issues and trends.

  • Digital assets can be created and defined by contract;

  • Some digital assets are subject to intellectual property laws;

  • Digital assets can be infinitely duplicated;

  • Digital assets have no specific location and multiple locations;

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