Arrange distribution of digital assets upon death: Digital Asset Trust
What is a Digital Asset Trust?
A Digital Asset Trust is a new kind of trust, in that it covers intangible digital material that is best understood as information, rather than something physical. For instance, if you've scanned precious photographs, but have lost the original prints, you'll want to make sure those digital family photos that span five generations are in good hands. And if you have a lucrative blog, you can help ensure the right person can easily take over upon your death. A Digital Asset Trust can help, but it's still a smart move to work with an attorney, as the area of digital estate planning is a relatively new field of law and there is no guarantee that your wishes can be fully implemented. We suggest that you consult an estate planning attorney to incorporate your digital assets into your Digital Asset Trust.
When to use a Digital Asset Trust:
- You want to make sure your digital assets are properly distributed when you pass.
- You want to choose the person or organization that will receive your digital assets.
- You'd like to assign someone to manage your digital assets if you're unable to.
Sample Digital Asset Trust
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This Digital Asset Trust Agreement (this "Agreement"), dated , is between (the "Grantor" or "Beneficiary") of , and
In consideration of the mutual covenants and promises set forth in this Agreement, the Grantor and the Trustee agree as follows:
. PURPOSE. The purpose of this Agreement is to establish a Trust to receive and manage digital assets for the benefit of the Grantor during the Grantor's lifetime, and to further manage and distribute the digital assets of the Trust upon the death of the Grantor.
. FUNDING OF TRUST. This Trust shall be funded with assets transferred to this Trust by the Grantor at the time of creating this Trust, or at any later time. During the lifetime of the Grantor, any interest in community property transferred into or out of this Trust shall retain its original character and such property shall not be commingled. This Trust may also receive property from any person or entity who is acting under the authority granted to that person or entity by the Grantor. It is also expected that this Trust may receive assets pursuant to the terms of the Grantor's Last Will and Testament.
. MANAGEMENT OF TRUST ASSETS. The Trustee shall manage and distribute the Trust assets for the benefit of the Grantor and the Grantor's successor(s) in interest in accordance with the terms of this Agreement.
. DEATH OF THE GRANTOR. Upon the death of the Grantor, and after the payment of the Grantor's just debts, funeral expenses, and expenses of last illness, the following distributions shall be made:
However, such distributions (other than distributions, if any, to the Grantor's spouse) shall be made only if the Grantor's spouse, , does not survive the Grantor.However, such distributions (other than distributions, if any, to the Grantor's spouse and the Grantor's children) shall be made only if the Grantor's spouse, , and the Grantor's children do not survive the Grantor.However, such distributions (other than distributions, if any, to the Grantor's children) shall be made only if the Grantor's children do not survive the Grantor.However, such distributions (other than distributions, if any, to the Grantor's spouse) shall be made only if the Grantor's spouse, , does not survive the Grantor.However, such distributions (other than distributions, if any, to the Grantor's children) shall be made only if the Grantor's children do not survive the Grantor.shall be distributed to . If this beneficiary does not survive the Grantor, this bequest shall be
any children born to or adopted by the Grantor after the signing of this Agreement. the Grantor's child, and any other children born to or adopted by the Grantor after the signing of this Agreement.the Grantor's child.the Grantor's children, and any other children born to or adopted by the Grantor after the signing of this Agreement.the Grantor's children.The custodian (whether trustee or guardian) of my assets may transfer all or part of the custodial property to a qualified minors trust without court order provided that the trust meets the requirements of Internal Revenue Code section 2503(C).
A. Use and Distribution. Until there is no living child of the Grantor under the age of years, the Trustee shall pay to any child of the Grantor or descendant of any deceased child of the Grantor, such sums from the income or principal as the Trustee deems advisable for such beneficiary's health, education, support, and maintenance. Any such payments need not be equal between or among the Grantor's children and descendants of deceased children either as individuals or as separate groups, and their distributive shares shall not be charged for such distributions. The Trustee shall take into consideration their respective needs and any and all other income and property that is known by the Trustee to be available to the beneficiaries for the above purposes. Any income not distributed shall be added to principal. When there is no living child of the Grantor under the age of years, the Trustee shall divide the Trust into equal shares, one share for each then living child of the Grantor, and one share for the then living descendants, collectively, of each deceased child of the Grantor.
The shares shall be distributed to the Grantor's surviving children (and/or surviving descendants, in the case of a deceased child, by right of representation) and this Trust shall then terminate.
1. With respect to each share provided for a child of the Grantor then living:
a. Because each child has attained the age of years, each child shall have the right, by written request, to withdraw one-third in value of the remaining assets of such child's share then being held in trust.
b. Each child who has attained the age of years, and each remaining child upon attaining such age, shall have the right, by written request, to withdraw one-half in value of the remaining assets then being held in such child's share.
c. Each child who has attained the age of years, and each remaining child upon attaining such age, shall have the right, by written request, to withdraw the remaining assets then being held in such child's share, and if that child does so withdraw the remaining assets, the Trust as to that share shall terminate.
d. The withdrawal rights described in paragraphs (a) and (b) shall be cumulative, so that if the child has already attained the age specified in paragraph (b) at the time the Trust is divided into shares, the child shall have the right to withdraw a total of two-thirds in value of the remaining principal then being held in that child's trust share. However, in the event that the child does not make a request for a distribution within six months after attaining eligibility to do so, the amount of such distribution shall not be distributed by the Trustee except as either (i) a part of the next succeeding distribution, or (ii) as provided in paragraph (e).
e. Prior to final distribution to each child, as provided in this section, the Trustee shall pay to each child such sums from the income or principal of that child's share as the Trustee deems advisable for such child's health, education, support, and maintenance. Any income not distributed shall be added to principal.
f. If a child of the Grantor dies before receiving full distribution of such child's share, the remainder of such child's share shall be distributed by right of representation to such child's descendants, if any, or if none, by right of representation to the Grantor's descendants. Each portion distributable to a descendant of the Grantor for whom a share of this Trust is being held shall be distributed to the Trustee of that share and become a part of that share.
2. With respect to each share provided for the then living descendants, collectively, of a deceased child of the Grantor, the Trustee shall distribute that share by right of representation to the descendants of the deceased child.
3. If no child of the Grantor survives to age years, and if none of the Grantor's children have surviving descendants, the Trustee shall distribute the remaining Trust assets in the manner set forth in the paragraph "No Surviving Descendants."
4. Upon the death of a trust beneficiary under the circumstances contemplated by this section ("Use and Distribution"), the Trustee, in the Trustee's discretion, may pay the expenses of last illness, funeral, and related expenses of such deceased beneficiary from Trust assets.
5. Whenever income or principal is to be used for the benefit of a person under the age of eighteen (18) years or a person who in the judgment of the Trustee is incapable of managing such person's own affairs, the Trustee may make payment of such property in any or all of the following ways:
a. By paying such property to the parent, guardian, conservator, or other person having the care and control of such person for such person's benefit or to any authorized person as custodian for such person under the Uniform Transfers to Minors Act or equivalent legislation.
b. By paying such property to the guardian, conservator or other person having the care and control of any incapacitated person.
c. By paying directly to any such beneficiary such sums as the Trustee may deem advisable as an allowance.
d. By expending such property in such other manner as the Trustee in its discretion believes will benefit any such beneficiary.
B. No Surviving Descendants. If at any time before final distribution of this Children's Trust, there is not in existence anyone who is, or might become, entitled to receive benefits under the foregoing provisions of this Children's Trust, then the remaining assets of this Children's Trust shall be paid over and distributed to
- the Grantor's heirs-at-law, their identities and respective shares to be determined under the laws of the State of , then in effect, as if the Grantor had died intestate at the time fixed for distribution under this provision.
- the Grantor's spouse's heirs-at-law, their identities and respective shares to be determined under the laws of the State of , then in effect, as if the Grantor's spouse had died intestate at the time fixed for distribution under this provision.
% - the Grantor's heirs-at-law, their identities and respective shares to be determined under the laws of the state of , then in effect, as if the Grantor had died intestate at the time fixed for distribution under this provision.
% - the Grantor's spouse's heirs-at-law, their identities and respective shares to be determined under the laws of the state of , then in effect, as if the Grantor's spouse had died intestate at the time fixed for distribution under this provision.
% - Total Percentage.
% - Total Percentage.
. TRUSTEE POWERS. The Trustee, in addition to other powers and authority granted by law or necessary or appropriate for proper administration of the Trust, shall have the following rights, powers, and authority without order of court and without notice to anyone, which may include, but not be limited to:
. Manage Assets. The power to act on my behalf for the purposes of managing, distributing, and terminating my digital assets, including all rights and powers that I may acquire in the future.
. Access Assets. The power to access, download, and backup digital assets, convert my file formats, access any and all devices necessary to manage digital assets, and clear computer caches and delete files.
. Indemnify Third Parties. No person who relies in good faith on the authority of my Trustee under this instrument shall incur any liability to me, my estate or my personal representative. I authorize my Trustee to indemnify and hold harmless any third party who accepts and acts under this document.
. Receive Assets. To receive, hold, maintain, administer, collect, invest and re-invest the trust assets, and collect and apply the income, profits, and principal of the Trust in accordance with the terms of this instrument.
. Receive Additional Assets. To receive additional assets from other sources, including assets received under the Will of the Grantor or any other person.
. Standard of Care. To acquire, invest, reinvest, exchange, retain, sell, and manage estate and trust assets, exercising the judgment and care, under the circumstances then prevailing, that persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.
. Retain Assets. To retain any asset, including uninvested cash or original investments, regardless of whether it is of the kind authorized by this instrument for investment and whether it leaves a disproportionately large part of the estate or trust invested in one type of property, for as long as the Trustee deems advisable.
. Dispose of or Encumber Assets. To sell, option, mortgage, pledge, lease or convey personal property, publicly or privately, upon such terms and conditions as may appear to be proper, and to execute all instruments necessary to effect such authority.
. Settle Claims. To compromise, settle, or abandon claims in favor of or against the Trust.
. Allocate Between Principal and Income. To make allocations of charges and credits as between principal and income as in the sole discretion of the Trustee may appear to be proper.
. Employ Professional Assistance. To employ and compensate counsel and other persons deemed necessary for proper administration and to delegate authority when such delegation is advantageous to the trust.
. Distribute Property. To make division or distribution in money or kind, or partly in either including disproportionate in-kind distributions, at values to be determined by the Trustee, and the Trustee's judgment shall be binding upon all interested parties.
. Enter Contracts. To bind the Trust by contracts or agreements without assuming individual liability for such contracts.
. Duration of Powers. To continue to exercise the powers provided in this Agreement after the termination of the Trust until all the assets of the Trust have been distributed.
. ADDITIONAL TRUSTEE PROVISIONS. These additional provisions shall apply regarding the Trustee.
A. Grantor as Trustee. If at any time the Grantor is the Trustee, the Grantor may appoint a successor Trustee, to become effective immediately or upon any stated contingency, by making such designation in writing. Such designee shall become the successor Trustee upon acceptance of the terms and conditions of this Agreement.
B. Successor Trustee. with bond. without bond. with bond. without bond. with bond. without bond. with bond. without bond. Such designee(s) shall become the successor Trustee(s) upon acceptance of the terms and conditions of this Agreement.
C. Resignation of Trustee. Any Trustee may resign by giving written notice to the beneficiaries to whom income could then be distributed. Such resignation shall take effect on such date specified in the notice, but not earlier than thirty (30) days after the date of delivery of such written resignation unless an earlier effective date shall be agreed to by the income beneficiaries.
D. Adult Beneficiary Rights. If the Trustee resigns or for any reason ceases to serve as Trustee, and if the successor Trustee(s) designated by the Grantor, if any, fail or cease to serve as Trustee, then the adult beneficiaries to whom income could then be distributed, together with the adult beneficiaries to whom principal would be distributed if the Trust were then to terminate, may by majority action in writing appoint a successor Trustee. If agreement of a majority of the beneficiaries cannot be obtained within sixty (60) days, a successor Trustee shall be appointed by the court having general jurisdiction of the Trust. Any successor Trustee appointed shall have all the rights conferred upon the original Trustee and shall be bound by the provisions of this Trust.
E. Accounting. The Trustee shall provide an accounting to the Beneficiary (or beneficiaries) on at least a(n) basis. If a beneficiary has a "disability", the Trustee shall provide the accounting to a guardian or conservator, if any.
F. Bond.
. REVOCATION OR AMENDMENT. During the Grantor's lifetime, the Grantor may revoke at any time, and/or the Grantor may amend, this Agreement by delivering to the Trustee an appropriate written revocation or amendment, signed by the Grantor. If the Trustee consents, the powers of revocation, but not the power of amendment, may be exercised by a duly appointed and acting attorney-in-fact for the Grantor for the purpose of withdrawing assets from the Trust.
. GOVERNING LAW. This Agreement shall be construed in accordance with the laws of the State of .
. PERPETUITIES SAVINGS CLAUSE. Despite any other provision of this Agreement to the contrary, the trust created by this Agreement shall terminate no later than 21 years after the death of the last surviving beneficiary of this Agreement who is living at the time of the death of the Grantor.
. SEVERABILITY. If any portion of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
. MISCELLANEOUS PROVISIONS.
. Paragraph Titles and Gender. The titles given to the paragraphs of this Trust are inserted for reference purposes only and are not to be considered as forming a part of this Trust in interpreting its provisions. All words used in this Trust in any gender shall extend to and include all genders, and any singular words shall include the plural expression, and vice versa, specifically including "child" and "children", when the context or facts so require, and any pronouns shall be taken to refer to the person or persons intended regardless of gender or number.
predeceased the death of the Grantor's spouse, and notwithstanding any other provision of this Trust, the Grantor's spouse (or the Grantor's spouse's estate as the case may be) shall receive the distribution to which the Grantor's spouse would otherwise be entitled to receive without regard to a survivorship requirement, if any.survived the death of the Grantor's spouse.The Grantor is married to and all references in this Trust to "the Grantor's spouse" are references to . The Grantor is married to and the failure of this Trust to provide for any distribution to is intentional.The Grantor is not currently married to anyone.The Grantor does not have any children at the time of the signing of this Trust. All references in this Trust to "the Grantor's child" or "the Grantor's children" include any children born to or adopted by the Grantor after the signing of this Trust.The name of the Grantor's child is .The names of the Grantor's children are:
., and any other children born to or adopted by the Grantor after the signing of this Trust.
____________________________________
| Signature: | , Grantor |
STATE OF
COUNTY OF
| Notary Address: | ____________________________________ |
| ____________________________________ |
| ____________________________________ |
| ____________________________________ |
STATE OF
COUNTY OF
DISTRICT OF COLUMBIA
, having first been duly sworn, did depose and say that he/she is the of , and , having first been duly sworn, did depose and say that he/she is the of , and , and , known to me to be the person described in and who executed the foregoing instrument as Trustee and acknowledged that he/she executed the same (in his/her authorized capacity) as his/her free act and deed.known to me to be the persons described in and who executed the foregoing instrument as Co-Trustees and acknowledged that they executed the same (in their authorized capacity) as their free act and deed.| Notary Address: | ____________________________________ |
| ____________________________________ |
| ____________________________________ |
| ____________________________________ |
COUNTY OF
PARISH OF
| Notary Address: | ____________________________________ |
| ____________________________________ |
| ____________________________________ |
| ____________________________________ |
COUNTY OF
PARISH OF
, having first been duly sworn, did depose and say that he/she is the of , and , having first been duly sworn, did depose and say that he/she is the of , and , and , known to me to be the person described in and who executed the foregoing instrument as Trustee and acknowledged that he/she executed the same (in his/her authorized capacity) as his/her free act and deed.known to me to be the persons described in and who executed the foregoing instrument as Co-Trustees and acknowledged that they executed the same (in their authorized capacity) as their free act and deed.| Notary Address: | ____________________________________ |
| ____________________________________ |
| ____________________________________ |
| ____________________________________ |
COUNTY OF
PARISH OF
COUNTY OF
PARISH OF
, having first been duly sworn, did depose and say that he/she resides at , , and that he/she is the of , and , having first been duly sworn, did depose and say that he/she resides at , , and that he/she is the of , and , and , known to me to be the person described in and who executed the foregoing instrument as Trustee and acknowledged that he/she executed the same (in his/her authorized capacity) as his/her free act and deed.known to me to be the persons described in and who executed the foregoing instrument as Co-Trustees and acknowledged that they executed the same (in their authorized capacity) as their free act and deed.
STATE OF
COUNTY OF
On this _____ day of ____________________, ______, before me, ________________________________, personally appeared , known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same as Grantor for the purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
____________________________________
Notary Public
____________________________________
Title (and Rank)
My commission expires ________________
STATE OF
COUNTY OF
On this _____ day of ____________________, ______, before me personally appeared
In witness whereof I hereunto set my hand and official seal.
____________________________________
Notary Public
____________________________________
Title (and Rank)
and and and and , , the of , , , the of , , , the Grantor, , , the Grantor, the Trustee, the Trustees| By: |
________________________________________
(Trustee)
| By: |
________________________________________
(Witness)
by , a trustee who is personally known to me or who has produced ______________________________ (type of identification) as identification, by , who is the of , a trustee who is personally known to me or who has produced ______________________________ (type of identification) as identification, by , a trustee who is personally known to me or who has produced ______________________________ (type of identification) as identification, by , who is the of , a trustee who is personally known to me or who has produced ______________________________ (type of identification) as identification, by , a witness who is personally known to me or who has produced ______________________________ (type of identification) as identification, by , a witness who is personally known to me or who has produced ______________________________ (type of identification) as identification, by , a witness who is personally known to me or who has produced ______________________________ (type of identification) as identification, by , a witness who is personally known to me or who has produced ______________________________ (type of identification) as identification, by , a witness who is personally known to me or who has produced ______________________________ (type of identification) as identification,
Letter of Instructions
Name of Digital Asset:
Name of Beneficiary:
Access information:
Where to Access:
Username:
Password:
Additional Information:
Name of Digital Asset:
Access information:
Where to Access:
Username:
Password:
Additional Information:
| _____ | The Digital Asset Trust should be signed by in the presence of three DISINTERESTED adult witnesses and a notary public. The signature of a third witness provides some protection against the possibility that one of the witness' signatures will be invalid for some reason. For example, a person should not be a witness if that person is a beneficiary under the Digital Asset Trust. In most states, if a beneficiary's signature is counted in order to satisfy the minimum number of witnesses, then the Digital Asset Trust is not necessarily invalidated, but that "interested witness" may not receive a share of the estate any larger than if the Grantor had died without a trust or a will. |
| _____ | All of the witnesses must watch sign this Digital Asset Trust. should verbally declare that the document is intended to be his or her Digital Asset Trust, but the witnesses need not read the Digital Asset Trust or know of its contents. |
| _____ | Each witness must sign his or her name with and the other witnesses present. The witnesses should be satisfied that willingly signed the document as a free and voluntary act, and that was of full age and sound mind. |
| _____ | The Digital Asset Trust is not valid unless it is signed by a Grantor who is of "sound mind" and of the minimum age for this state. In most states, the minimum age is eighteen. Some states permit an individual below the minimum age to sign a Digital Asset Trust if the person is married or in the military. Being of "sound mind" requires that the Grantor: (a) know that he or she is signing a Digital Asset Trust, (b) know the general nature and extent of his or her property, and (c) know the descendants or other relatives that would ordinarily be expected to share in the estate. |
Attachments
| _____ | The Florida Self-Proving Affidavit is a document which should be attached to the end of the Digital Asset Trust, and which contains 's acknowledgment and the affidavit of the witnesses, made before a person authorized to take acknowledgments and administer oaths. The affidavit recites that the requisite formalities were observed in signing the Digital Asset Trust. Although attaching the affidavit has nothing to do with the legality of the Digital Asset Trust itself, it can speed the admission of the Digital Asset Trust to probate (if necessary) after the Grantor's death because it eliminates the need to have a witness appear at the probate proceeding to testify that the formalities in signing the Digital Asset Trust were followed. The witnesses may not be available later when they are needed. A self-proved Digital Asset Trust may be admitted to probate without additional witnesses or affidavits, but it is still subject to contest on such grounds as undue influence, lack of testamentary capacity, or prior revocation. |
When to Consult a Lawyer
| * | If is unable to sign due to physical disability, another person may be able to sign on behalf of , in 's presence, and at the express direction of . However, this document does not provide the necessary language for another person to sign for the Grantor. For assistance with this procedure, a lawyer should be contacted. |
