Estate planning has always been a tricky exercise. On one hand is the objective – who inherits what, when, in what form and what’s the tax impact. On the other hand is the subjective – mostly family dynamics such as prior marriages, desire to benefit kids/grandkids (and, likely, treat them ‘fairly’), disliked relatives, deep-seated resentment, mom always liked you best, etc. That’s an incomplete last and quite the oversimplification but it touches on the common topics that arise during discussions with clients.

Cyberspace has added a new wrinkle. More and more our world is becoming an online one yet stringent privacy laws and online security make institutions leery of dealing with anyone other than the person owning the information. Who will access your information and how will they do so should you become incapacitated or when you die? Will it be legal? Put another way who will be the digital you?

Recognizing this trend a number of states have enacted legislation. Delaware is the latest to do so by enacting the Fiduciary Access to Digital Assets Act. Effective January 1st access and authorization for digital assets will be granted to personal representatives, trustees, guardians and agents named under a durable power of attorney.

Delaware’s law is not only the newest – it’s the most comprehensive. Many other states are considering similar laws. To date here are some examples of previously enacted and more narrowly drafted legislation:

CONNECTICUT: Statue §45a-334a gives the personal representative of a deceased person’s estate the powers to access or copy the contents of the person’s e-mail accounts.

IDAHO: Statue §15-3-715(28) gives the personal representative of a deceased person’s estate the powers to “take control of, conduct, continue or terminate” a deceased person’s e-mail account, social networking account, micro-blogging account or instant messaging service. Similarly Statue §15-5-424(3)(z) grants similar powers to a person’s conservator.

INDIANA: Code §29-1-13-1.1 allows the personal representative to access or copy any of the decedent’s documents or information stored electronically.

NEVADA: Revised Statutes §143.188 gives the personal representative of a deceased person’s estate the power to direct the termination of any online account or similar electronic or digital asset. Noticeably absent are powers such as accessing and copying the contents.

OKLAHOMA: Statue §58-269 gives the personal representative of a deceased person’s estate the powers to “take control of, conduct, continue or terminate” a deceased person’s e-mail account, social networking account, micro-blogging account or instant messaging service.

RHODE ISLAND: General Laws Chapter 33-27 gives the personal representative of a deceased person’s estate the powers to access or copy the contents of the person’s e-mail accounts.

VIRGINIA: Code §64.1-110 gives the personal representative of a decedent’s estate the power to assume the Terms of Service agreement for an online account “for the purposes of consenting to and obtaining the disclosure of contents…” It’s interesting to note this applies only to deceased minors and not to deceased adults. Huh?!

The best way to handle your digital self is to make your wishes known in your estate documents – yet another reason it’s important to maintain an ongoing discussion with your financial planner, wealth manager and attorney.