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Lawmakers are trying to clarify rules governing the passage of social-media and email accounts, along with other online assets that might have financial value. Several states have enacted laws to deal with post-death access to digital assets, and several more are working on similar legislation, says Gene Hennig, a lawyer at Gray Plant Mooty in Minneapolis and a commissioner of the Uniform Law Commission.
That group, which recommends uniform state laws, plans to come up with a recommended statute that more states could adopt.
“Eventually people are going to start putting in their wills what they want, and we need to know what’s allowed,” Mr. Hennig says. “In the olden days, grandma had a chest in the attic full of photo albums. Now, your chest of photos is in your computer.”
To that end, some estate planners are pushing clients to leave their families better instructions.
“Every time I meet with clients, I say, ‘You have to deal with your digital assets,’ and I’ve put language in wills and trusts about it,” says William Schmidt, an estate-planning attorney at Schmidt & Federico in Boston. He says executors have to be able to locate all of the assets, and “you can’t do it by rifling through a desk anymore to find the account statements, because they’re online.”
The U.S. General Services Administration recommends people set up a “social-media will,” review the privacy policies and terms and conditions of each website on which they have a presence and stipulate in their traditional will that the “online executor” get a copy of the death certificate.
There also could be money at stake. A survey last year by McAfee, Intel’s security-technology unit, found that U.S. consumers value their digital assets, on average, at nearly $55,000. That includes photos, projects, hobbies, personal records, career information, entertainment and email.
“Some people who play videogames a lot develop characters or weapons with value, and those can be sold,” says Lewis Chamberlain, an investment adviser in Redding, Calif. “You might have a sword that could be sold on eBay for $800. Those are assets, and you’ve got to plan for that.”
Here are some steps to consider.
Choose your “digital executor” carefully. This may be the same person you put in charge of the rest of your estate, depending on that person’s comfort with technology.
Mary Hays, an estate lawyer at Aronberg Goldgehn Davis & Garmisa in Chicago, says one of her clients recently named a separate “social-media executor” because the main executor wasn’t tech savvy.
Be clear about what to do with your accounts. Some people want them canceled immediately; others want the accounts to survive as a legacy, allowing access to emails and photos for family in lieu of physical photo albums and scrapbooks. Your executor will have no way of knowing how you feel unless you spell it out in advance.
“If you have an estate-plan document book, devote one page of it to this. It doesn’t have to be anything fancy,” Ms. Hays says. “If you want [an account] to be ongoing or serve as a memorial, you need to make that known to the person you ask to take care of this.” Otherwise, they’ll probably just shut it down, she says.
Create a reference guide. Make a list of every site you can think of where you have an online presence, along with your user names and passwords, Ms. Hays says.
She recommends naming the digital executor in the will, but keeping the list of how to get into your digital assets separate from the will, since you will need to update it frequently as you change passwords.
Make a “digital-asset trust” document, says Charley Moore, founder and executive chairman of Rocket Lawyer, an online legal service, in order to keep your online assets from going through probate. Such a trust can specify who gets access to what information, says Mr. Moore, whose company offers the service.
“If you haven’t made arrangements in advance, those assets are going to pass to your next of kin,” usually your spouse, he says. “Maybe that’s not what you want—maybe you want to spare the spouse the embarrassment or the pain of it to keep your legacy intact.”
Ask your financial adviser if you are covered already. Some are starting to gather clients’ accounts in one place online.
“We use cloud ware to keep our clients organized,” says Mr. Chamberlain, the California adviser. “If something happens to the client, it can be instantly changed over for the spouse or executor to have access.”
Outsource the planning. If you want to do something more elaborate, consider using one of the dozens of paid services that provide digital estate-planning help.
While society has evolved from an Industrial to an Information Age over the last hundred years, we’re now operating in a Digital world where technological innovations and intellectual property reign supreme. This fast-moving digital environment–including web, mobile and social media–requires a proactive stance on developing and protecting digital innovations as the global marketplace becomes even more competitive and organizations run the risk of losing critical innovations as others move quickly to steal ideas if the opportunity exists.
While digital strategy is driven largely by marketing or IT departments, every digital asset of the company is and should be treated and protected as an intellectual asset, but today these assets are often overlooked. Consider the long list of marketing or IT developments at your company. Everything from user interfaces, apps, social networking functions, personalization options on web pages, subscriber perks, wi-fi offerings, e-commerce solutions, bridging offline and online experiences and new products and services related to digital activity result in digital assets that an organization deploys. But, are you taking the next step to protect them or leaving them out in the open to steal? Worse, are you infringing on someone else’s intellectual property (IP)?
Innovations at Lightening Speed – Are You Giving It Away?
Today, digital assets can be protected by utility patents, design patents, copyright law and trademark law. Typically, as these innovations occur at such a rapid pace, they are not captured and translated into protected digital assets. Further, as the use of digital strategies is exploding and the creation of digital assets is a relatively new concept, most organizations have yet to build a formal business case and required methodology for protecting these assets. Compounding the issue, much of the innovation work is done in collaboration with outsourced vendors in marketing and IT, often in a vacuum, so there isn’t a legal or other IP advocate to even ask the question: “Should we protect this?”. Finally, much of the technology used to develop these innovations is often open sourced which creates an additional layer of confusion and often one that the legal team won’t touch.
The world is beginning to change in response to protecting their digital assets. Patent trolls have largely emerged in the digital and technology space attacking companies from Starbucks to Cisco for wi-fi offerings, web functionality and what was previously considered open territory for marketers and web designers. And, these trolls are finding loopholes and great financial gains. Today, the trolls monitor major innovative initiatives by world-class organizations and copy and develop their own innovations around successful ones, improve them, and then ultimately file a new patent for it. And then in a crazy twist, they send these same organizations a cease and desist letter and ask for a license fee. Why aren’t organizations protecting these same assets to defend themselves and even use them as additional sources of revenue?
Building and Protecting a Digital IP Portfolio
Most companies need to start by identifying the pipeline of ideas and then turn the right ideas into valuable assets. The innovation pipeline of digital assets is likely already alive and well in most organizations but they aren’t tapping into it. So, the first step in building a Digital IP Portfolio is to audit where that innovation is occurring. Understand when it is outsourced to vendors and assess whether it should be retained, shared or given away. Once you know where the innovation is occurring, it’s time to funnel it into an IP evaluation pipeline. At that juncture, an IP business strategy team (comprised of IP strategy experts, IP lawyers, business managers, IT managers and marketers) can evaluate its potential use and strength. Is it a good defense play against trolls or other competitors? Is it something you can license to others? Is it something you just want to ensure you have and your competitors don’t? By assigning values and business goals to all of these assets, you can then channel them into a protection process with budgets and clear return on investment goals.
And, the importance of having a multi-disciplined approach cannot be overstated. Generating valuable digital assets is not just a legal or IP function, it requires understanding and contribution from other facets of the company that can identify value proposition and weigh in on risk/reward. Digital is new and evolving and critical thinking about its value proposition is essential. Many digital assets are not worth protecting if it won’t last beyond the next fad. But others are. That’s why Facebook, Google, Adobe and others have become some of the top patent filers in the world. They file for much more than just devices and consider every innovation a potential asset both offensively and defensively.
Once digital assets are channeled into protection they can then be redistributed back out to spur innovative thinking and evaluate licensing or leverage potential. While many companies don’t see themselves as technology companies, they are quickly becoming so with their digital platforms. From retailers to entertainment and consumer goods, soon all companies will be a digital or technology company to some extent. If you don’t own and protect those assets, someone else will and use it against you. The time is now for savvy IP and technology professionals to identify an untapped resource – their digital assets.
Consider for a second your individual digital footprint. At a minimal, there’s prone to be no less than one or two social media accounts by way of Facebook or Twitter. Your financial institution accounts are virtually sure to have on-line entry, and maybe there’s additionally just a few hundred dollars in a Neteller pockets for the odd flutter on eBay.
That’s earlier than you even think about the non-public knowledge you have got saved on the desktop at
residence, or on the iPad that by no means leaves your facet. These components are an indelible a part of our lives, however treasured few of us contemplate the implications of those digital alter-egos as a part of their formal property planning.
Digital Wills are actually being made accessible by revered organisations so individuals can guarantee their on-line legacy lives – or fades – in response to their needs. The prompt verify-listing for these contemplating a digital Will consists of:
• What are your digital belongings? Make an in depth and correct listing.
• Who do you wish to look after and take care of your digital property after your death?
• Where are your digital belongings, who can entry them and what passwords or different entry controls (equivalent to encryption, and many others.) are required?
• Which websites do you need to proceed or shut after your death? Are there any saved gadgets you don’t need deleted (such of images or movies)?
The experience of a Digital Will maker additionally helps family and friends negotiate the minefield of phrases and circumstances that almost all of us settle for with a tick of a field.
For instance, some websites like Amazon don’t present any info on learn how to shut the account of deceased customers. iTunes is one other gray space. No substantial regulation exists to say whether or not you actually personal the content material without end, or simply while you’re alive.
These issues are much more vital for residents of Australia. While the suitable of publicity ceases while you die as a resident of most international locations, no legal guidelines at the moment exist in Australia to grant a Will’s executor automated entry to somebody’s social media accounts.
Storing your digital identification
In addition to Digital Wills, a preferred various is to retailer essential paperwork and passwords in an internet vault. Businesses together with SecureSafe and Legacy Lockbox supply safe on-line storage of passwords and paperwork.
Password administration accounts will also be set-up utilizing software program reminiscent of Norton Identity Safe whereas Google just lately launched a brand new program known as Inactive Account Manager, which permits you to decide on how you would like your Google information to be managed.
Perhaps these alternate options will likely be sufficient for the likes of Ms Hilton and Ms Spears to steer away from a visit to the liquid nitrogen tanks.
Digital estate planning is becoming an increasingly common practice. However, security measures of internet and technology corporations have the potential to disrupt the implementation of a testator’s plans.
A recent news article tells the story of a woman named Anthea Grant, who purchased an iPad for use during two years of cancer treatment.
The device was used primarily for entertainment during chemotherapy sessions and for video communication with Anthea’s sons, Josh and Patrick.
After Anthea’s death, her sons realized that they did not know their mother’s Apple account password. Anthea’s sons are the sole beneficiaries of her Estate. There is no controversy with respect to the sons’ right to possess the device. However, Josh and Patrick have been unable to obtain access to the tablet to see if it contains any relevant information.
After providing their mother’s death certificate, a copy of her Last Will and Testament, and a letter from their solicitor, as had earlier been requested, Apple is now asking for Anthea’s written instructions that Josh and Patrick are authorized to access her account. As this is no longer an option, Apple recommends that the brothers obtain a court order to prove that Anthea was the owner of the iPad and Apple account, citing the American Electronic Communications Privacy Act as its rationale in denying access.
While Anthea’s sons do not wish to incur the legal fees necessary to obtain a court order for the release of the Apple account information, they wonder if the iPad contains any digital assets of any financial or sentimental value.
A digital estate plan frequently facilitates access to computer accounts, with a list of all accounts and login information. Had Anthea created a digital estate plan, including such information, this issue would not likely have emerged. Nevertheless, legislation in Canada and elsewhere remains an outdated barrier that should be amended to address the prevalence of digital assets in estate planning and administration.
Thank you for reading.