Although there is no national legal consensus to guide digital estate planning, you can still develop an effective plan in consultation with your attorney. At the very highest level, this process involves the following steps: Completing a digital asset inventory, identifying a digital executor and consulting with an attorney, providing access to your digital assets, providing instructions, and granting authority.
- 1 Step 1: Complete a digital asset inventory to identify your digital assets
- 2 Step 2: Identify your digital executor and consult with an attorney
- 3 Step 3: Provide access to your digital assets
- 4 Step 4: Provide instructions on how to administer your digital assets
- 5 Step 5: Grant your digital executor(s) authority to administer your digital estate
Step 1: Complete a digital asset inventory to identify your digital assets
What to include: Examples of items to include are:
- Hardware: For example, flash drives, US bard drives, digital cameras, backup CDs/DVDs, Computers, iPads, iPods, and other devices.
- Networking: Router information, wireless network names and passwords
- Software: For example, financial programs such as Quicken or online software subscription accounts, such as to Adobe Cloud
- File structures: Information to indicate how and where files are organized on your computers and other storage devices
- Social networking, social analytics, social curation, sharing, and online reputation management: For example, Facebook, Twitter, HootSuite, Buffer, Pinterest, Scoop.It, Paper.Li Klout, Kred
- Professional networking: For example, LinkedIn, Plaxo, BizNik
- Photo sharing and video: For example, Flickr, SmugMug, Shutterfly, Instagram, Vimeo, YouTube, Vine
- Music streaming and sharing: For example, Spotify and Pandora
- Media and online entertainment/apps stores: For example, Netflix, iTunes, Google Play, or Windows App store
- Online presence/personal branding: For example, any websites and associated webmaster/analytics accounts, blogs, online commerce sites (if you run an online business). For example, WordPress, Blogger, Google Analytics, Google Webmaster Tools, About.Me
- Online backup/file storage: For example, Skydrive, Dropbox, Wikispaces, Box.Net, and Google Drive.
- Online merchants: For example, Amazon, ebay, iTunes, Nordstrom, Starbucks, or Netflix. Also, any digital subscriptions to local or national newspapers or online magazines.
- Online gaming/virtual worlds: World of Warcraft, Second Life, XBox
- Financial planning accounts: This includes banking, retirement, investment, credit card, loan, and insurance accounts that are accessed online.
- Email accounts
- Student and library accounts
- Utility bill accounts that are paid online
- Travel-related accounts: These could include frequent flyer mileage accounts, and travel planning accounts such as TripIt, as well as travel loyalty/rewards programs such as Hilton Honors.
If you plan to store this information online, companies such as Legacy Locker and SecureSafe provide services for this purpose. For a list of companies and the services that they provide, see The Digital Beyond website’s helpful listing and pages 10 and 11 in Estate Planning in the Digital Age by law professor Gerry Bayer.
Important: Be aware that although online services are helpful as repositories for digital asset information and instructions, it is critical to consult an attorney to ensure that you transfer assets in a legal manner. As Gerry Bayer and Naomi Cahn state:
Clients may have signed up with an on-line asset management company and so be hesitant to address these assets in the estate planning process. Clients may believe the companies’ claims that they will be able to distribute digital assets to beneficiaries or to destroy assets that the client wishes to discontinue on her death. Clients need to understand that the legality of these actions is doubtful. Although these companies can be used to store information, other estate planning methods should be used to transfer assets.
For more information, see When You Pass on, Don’t Leave the Passwords Behind.
Step 2: Identify your digital executor and consult with an attorney
Choosing your digital executor: Your digital executor will carry out your end-of-life wishes for your digital estate. You may want to choose the same executor for your digital and physical assets, choose a different executor for your digital assets, or choose multiple individuals to perform the different tasks required to administer your digital estate. Whichever approach you choose, keep in mind that accessing online accounts and carrying out specific actions such as deleting an account or archiving information, requires technical knowledge and skill. Choose someone who has sufficient experience, is technically proficient, and adept at solving problems should they arise. That person should also be impartial so that they can carry out wishes that may be difficult for less impartial individuals (such as deleting accounts that you want deleted that certain family members may not want to delete for sentimental reasons).
It is important that your digital executor comply with applicable state and federal statutes and Internet service providers’ terms of service agreements. For example, depending on the terms of service of the email provider, if your digital executor accesses your email account without the email provider’s knowledge, that action could violate the providers’ terms of service and constitute identity fraud. Preventing such issues is one reason why it is critical to choose a skilled attorney.
Choosing your attorney: If you already have an estate planning attorney who is also experienced with digital estate planning, this is ideal. If you need help finding an attorney, a reputable bar association-sponsored lawyer referral service may be one option. For information, see the American Bar Association Consumers’ Guide to Legal Help. A high-quality directory of rated lawyers such as Avvo is another option.
Step 3: Provide access to your digital assets
If you have not already done so as part of Step 1, for each digital asset, note the information required to access it. For example, note the name and type of digital asset, and where applicable, the site URL, the user name that you use to sign in/log in to the account, your password, and any answers to secret questions, if required for account logins. If you used an online service when you completed your initial digital asset inventory, you may have entered this information as part of that process.
Step 4: Provide instructions on how to administer your digital assets
Instructions may include:
- Notifying Facebook friends, Twitter followers, LinkedIn connections, and blog readers that you have passed away or are incapacitated.
- Deactivating/closing social media profiles, or memorializing them. For example, Facebook and Google both provide ways for appropriate designated individuals to take specific actions as follows:
- Facebook: Facebook provides an option to memorialize a deceased person’s profile. If you choose this option, this allows for friends to share their memories on your timeline and view content that you choose to share after you pass away or have become incapacitated. It also ensure that your memorialized timeline doesn’t appear in People You May know and other suggestions.
- Google: In April this year, Google released Inactive Account Manager, which lets you share specific parts of your account data or notify one or more trusted contacts if your account has been inactive for a minimum of three months. The contact will be notified via email and if you choose to share your data, they will be provided with links to download your data, after their identify is verified.
- Bequeathing information that you may want to be made available to specific people.
- Closing or continuing websites: Designating someone to maintain or close your blog and perhaps archive important information, if allowable under the Internet service provider’s terms of service.
- Specifying information that should not be deleted, such as valuable creative works completed or in progress, personally important photos, videos, or other content.
- Posting a final online message that can be shared with your friends, family, and colleagues (an example of a moving final message is here). For example, you may want a photo album posted or a video. A growing number of online services and applications, such as ifidie, Recollect, and Bcelebrated, provide different ways to create an online legacy.
This step is crucial and where you will want to work closely with your attorney, to ensure that your digital executor is legally authorized to carry out your digital estate planning wishes and he or she does not run afoul of applicable statutes, laws, and terms of service agreements.