Why you Need to Start Thinking About your Digital Estate Plan

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Joan Mitchell in her studio in Vétheuil, France, 1983. Photo by Robert Freson, Joan Mitchell Foundation Archives. © Joan Mitchell Foundation

By Natalie Koza and Eleni Demestihas

Traditionally, when someone died, their executor would follow a standard process to settle their estate: locate the will, go through file cabinets to look for other important documents, and file a tax return at the end of the year. These days, much of our lives are conducted online, and that can lead to big headaches for families attempting to sort through digital accounts and possessions, especially if they don’t even know what those are. Just as traditional estate-planning relates to the management and transfer of financial accounts and hard assets, digital estate-planning encompasses your digital possessions, including tangible digital devices, stored data, and online accounts.

Given the increasing digitization of music, the importance of managing your digital estate as diligently as you would manage the rest of your legacy has become increasingly important. Whether world-famous or simply aspiring, most musicians have considerable digital footprints. Your digital estate includes all of the digital property you would expect such as .mp3 recordings of songs, social media accounts, and text messages. It also includes your digital rights, meaning the rights to both own and use your digital property. For musicians and composers, this includes the right to use and publish your music. The best way to start planning for future administration of your electronic works is to identify the components of your digital life. Here are a few ways you can begin updating your estate plan to protect your digital afterlife and help loved ones access the information they need to settle your affairs.

Organize all of your Digital Agreements and Contracts

One of the most important ways to help preserve your digital legacy is to carefully document and inventory all agreements you make regarding your artistic works. When you sign contracts or enter into agreements with others concerning your works, you alter your relationship to those works, either temporarily or permanently. As the creator of an artistic work, you have certain legal rights regarding that work. If the work is protected by copyright, you have the exclusive right to reproduce and make copies of your work, to prepare derivative works based on the original work, to distribute copies to the public, and to perform or display your work in public. Many times, agreements that you enter into regarding your intellectual property serve to give others a limited right to distribute your work within a certain time frame, or a right to make copies of your work for a specific purpose. It’s important to keep track of these agreements so that you and the future executor of your estate can make sense of what your rights are regarding your digitally-stored works. Today, plenty of these agreements may also be completed digitally, over email or using .pdfs. Just as you would store a paper copy of a contract, be sure to store all digital agreements that you enter, whether formal or informal. In the future, an inventory of these agreements might help an executor preserve your estate by understanding who has the right to distribute your work, other than the estate itself.

Make Inventory Lists Of Your Digital Assets And How To Access Them

This is a critical yet oft-forgotten consideration when it comes to digital estates. When naming an executor to administer your estate, it is essential to ensure that they have access to your online accounts and protected documents. Your social media, email, banking, and online storage accounts are probably the first things that come to mind. But the list includes much more such as loyalty rewards points, websites and blogs that you run, and domain names that you own. Once you’ve compiled this list, you should document all of the usernames and passwords, and decide who you want to share them with. Additionally, you should decide what you would like to happen to each of these resources. Many of these assets will be easy to administer. A number of states now have laws governing the handling of online accounts upon a user’s death and often, a written authorization is effective for all online accounts. Through a digital asset authorization, will, trust, power of attorney, or other written record, you can direct an online service provider to disclose your accounts’ contents to someone with the legal authority to oversee your estate.

Deciding what to do with some of your other assets will require more thought, particularly if you have a valuable online presence that generates revenue or can potentially be monetized. For example, if you have an online store or a blog that brings in advertising income, you need to consider whether you will want to shut these sites down, pass them on, or attempt to sell. Leaving a letter of direction about how you want certain accounts to be managed can help solve this issue. Whatever your plan is, it is crucial that you inform family that you have made it and store the information in a secure location. While the information may be incredibly sensitive, it must also be accessible so that an executor can put your plan into action when the time comes. Consider the cautionary tale of Leonard Bernstein. When Bernstein died in 1990, he left a draft of his autobiography spanning his lifelong career as a renowned composer, conductor, pianist, educator, and humanitarian on his computer. That memoir, however, only existed as a password-protected electronic document. Because the password was never documented, the memoir, likely a valuable part of his legacy, was never published and remains unopened to this day.

While the basics of estate planning have not changed, the scope has expanded dramatically in recent years. Taking inventory of your digital life to ensure the proper management and orderly transfer of your intangible assets is now a vital component of the estate planning process. As we continue to move into an online, digital society, the crucial information that is often buried deep in your computer files or simply stored away in your mind must be clearly documented in order to best preserve and continue your legacy.

Natalie Koza and Eleni Demestihas are legal interns with the Arts & Business Council of Greater Boston. Natalie, a Detroit native, studies copyright and trademark law at New England Law | Boston. Eleni, a former playwright from Atlanta, studies sports and entertainment law at Boston College Law School.

The Arts & Business Council, home of the Volunteer Lawyers for the Arts of Massachusetts, provides legal and business support services for artists, arts nonprofits, and arts and cultural organizations throughout the state. As part of a partnership with the Joan Mitchell Foundation, the Arts & Business Council is also a national provider of legacy planning resources for artists, having co-authored the Foundation’s Estate Planning Workbook for Visual Artists and Workbook for Attorneys & Executors, available at https://artsandbusinesscouncil.org/estate-planning-legacy-services-for-artists/.