In the article, “Your Digital Footprint Left Behind at Death: An Illustration of Technology Leaving the Law Behind,” author Sandi S. Varnado explores the importance of providing for one’s “digital footprint” in an estate plan. In her definition of “digital footprint,” the author includes all digital information, assets and accounts. As explained in her excellent article, this term encompasses an ever-increasing amount of property, including:
- (1) emails, photographs, videos, documents, books, music and other collections stored on a computer;
- (2) social media accounts, financial accounts, including accounts linked to college funds, banks, brokerages or individual retirement account plans, credit cards, loans and insurance policies; and
- (3) customer award programs, blogs, domain names and even business assets.
The author prophesizes: “Thus far, the problems [of not providing for digital assets at death] have not reached epic proportions, but that day is coming.” For me, one of the great unanswered questions of estate administration is how, from a practical perspective, a decedent’s representative is going to review, inventory and distribute digital assets. The task is Herculean, including finding email passwords and developing a process by which to review all of this information.
On top of the practicality of these tasks, a critical item that needs resolution, highlighted by the author, is privacy. Professor Varnado gives the following curious examples of the problem: “The teenager who creates an email account from which he communicates personal details to chosen individuals or the adulterer who creates an account for the sole purpose of communicating with an extra-marital lover.”
On the positive side is the sentimental value of digital assets and digital information. Families may want to obtain personal information regarding their deceased loved ones from Google and Facebook, as well as other social media sites. But, service providers may be concerned about providing the authority to allow access to families posthumously.
The author suggests that all clients provide a digital inventory as part of the estate-planning process. That’s reasonable—if we can get our clients to actually prepare such a list. Prof. Varnado notes there’s a disagreement as to whether this inventory should be incorporated into a will or not. I recommend keeping it outside a will because that way, it will be more economic and pragmatically likely to be implemented and updated. We, as estate planners, need to draft plans with specific exculpation clauses to the representatives and specific distribution provisions of digital property. We also need to discuss the client’s expectations with regard to the representative’s exploring social media sites and other electronic records.
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One planning avenue that we could consider to deal with digital assets is a digital trust. This vehicle would be a developed form that defines the digital estate, provides exculpation to the digital estate “trustee” (that is, the individual responsible for monitoring the digital estate post-mortem), defines what’s expected of that individual (for example, review and deletion of all email records) and provides compensation for that individual. The trust would distribute specified items of digital properties to certain individuals as directed in the trust. The residue of that digital estate could be distributed to the main living trust. There could be an expense reimbursement provision linked to the main living trust. The reason to do a stand-alone document is to prevent a delay of the main will and trust while the person focuses on the digital estate. Though the author doesn’t focus on the “digital trust” as a solution to the digital post-mortem estate problem, the article is an excellent one on the digital footprint area and a recommended read to all practitioners. This is a burgeoning area, and we should expect additional discussion of it going forward.