People draft estate plans that carefully detail how their money and property should pass to their heirs after they become incapacitated or die.
But what about our so-called digital assets, such as an iTunes account containing thousands of songs, or a Twitter account with hundreds of followers? Can people pass those on as well? And how do they ensure that heirs get access to password-protected bank and trading accounts that exist only online?
Questions like these are popping up with more frequency—and for good reason. A popular blog or Web domain, for example, can have great, or potential, value as a business. But if the owner doesn’t take the proper legal steps ahead of time, their heirs may lose the rights to those assets. Photos, videos, email and contents of social-media accounts also may be lost.
Make a List
Justin T. Miller, national wealth strategist in the San Francisco office of BNY Mellon Wealth Management, a division of Bank of New York Mellon Corp. , says that clients often react with surprise when advisers ask about their plans for passing on things like online financial and social-media accounts. Even the technology executives he counsels, Mr. Miller says, have given little thought to how to provide their heirs with access to some of their online assets.
Katherine Dean, managing director of wealth planning for Wells Fargo Private Bank, San Francisco, says one couple worth around $20 million seemed abashed when she asked them to detail their digital assets in making a comprehensive financial and estate plan. She gave them a one-page checklist seeking information about such assets as photo and social-media accounts, Web-based games, and online-only banking and brokerage accounts.
“They said, ‘Oh my gosh, we’ve got to go online to get this,’ ” says Ms. Dean. “Whenever we hear that, we take the time to have the conversation that this is very important.”
The most important thing, estate attorneys say, is to establish procedures for protecting and granting access to passwords and for transferring assets and account ownership. The rules can vary widely depending on the vendor. While there is nothing in Twitter’s company rules and conditions that says one of its accounts must close if the owner dies, Apple Inc. ‘s iTunes says it doesn’t have a policy that allows anyone to will or inherit an iTunes account.
But even where limits exist, by placing the license and necessary passwords in a trust, access to such accounts can be preserved, says Naomi R. Cahn, a professor at George Washington University Law School.
Ms. Cahn explains: Many digital assets are owned through a license that is limited to the account-holder and nontransferable. The license may cease to exist when the account-holder dies, so it can’t be transferred in a will. But by placing the license in a trust, it is possible that the license will survive the death of its creator.
Wills play an important role, too, Ms. Cahn says, mainly in stating who should receive any digital property that is capable of being inherited. A will can also designate who will have access to digital accounts, although this may not be legally binding.
Estate advisers caution against listing digital assets and passwords in a will because the will can become public. Such information instead should go into a separate letter, says Lesley Moss, an attorney at law firm Oram & Moss in Chevy Chase, Md.
Looking for Legislation
A group of states is interested in drafting a law that would make it easier for consumers to bequeath online property by giving fiduciaries the right to manage and distribute their clients’ digital assets.
Lawyers, judges, legislators and law professors from the Uniform Law Commission, a group appointed by state governments to draft and promote new state laws, met this summer to discuss such a proposal.