Quigley: Digital estate assets in a cloud of confusion

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Think for a minute about the unthinkable – a sudden death. Yours. After the funeral your relatives gather around your kitchen table to cry, talk about what a wonderful person you were, say how much they'll miss you, and decide how they will divvy up your possessions. Your closet's full of clothes, your dresser drawers are stuffed with underwear, your kitchen's full of gadgets, but there's barely a paper in sight.

Of course there isn't. You were a 21st century American. Everything important is on your electronic devices. And you were careful about them, so no one knows your password to any of them.

Somewhere behind those dark, blank screens are your financial records, your photographs, your iTunes, your ebooks, and perhaps a great many secrets.
Getting access to them is only the first problem. Determining who should be able to access them is the second, but determining who owns them may be the biggest hurdle of all.

International, U.S. and state laws haven't kept up with our electronic world and need major updating to resolve inheritance problems with computerized data. Court rulings vary from country to country, state to state, and according to individual circumstances. There are few legal precedents.

Lawyers will say dead people no longer have rights or own property, and that's true to some extent. If someone gets access to your personal data, they can pretty much do as they like with it as long as no one knows or protests. They can delete, modify, share, or duplicate any writings, photos, or intellectual property that hasn't been copyrighted.

And if your bank accounts and one-click ordering services aren't adequately protected, the person with your password could even spend your leftover money without anyone noticing. They'd risk legal action if caught, of course, but they might be sneaky enough to get away with at least some of it.

So be really careful who gets your personal passwords.

But be sure someone does. Otherwise your photographic and journalistic memories, the ones you wanted to pass along to your kids, could be unreachable in that cloud forever. You might want to specify what happens to each of your digital assets in your will to avoid family squabbles.

However, no matter what your last testament says, you may not be able to leave all your downloaded music, films and books to an heir. Unlike the tangible books and disks you have, many digital assets are sold with non-transferable rights of use, and some contracts with service providers are automatically terminated when the original user dies.

Since it is far more likely younger people are stockpiling digital assets than older people, the problems with estates haven't yet become priorities to the providers of digital content, although they're becoming frequent enough to draw the attention of litigators and legislators.

There are some precautions you can take right now. First, read and understand every word of those lengthy agreements websites ask you to click on indicating you accept their terms. You might not want to accept their terms, although it's unlikely they'd modify them for you.

Second, back up everything you wish to protect in some manner and give access to the back-ups to a trusted person to be used only in certain circumstances. Some services are emerging that will allow a user to store passwords and limited digital assets in an account that can be left to a previously identified heir.

OK, enough depressing and confusing stuff, right? Just don't die till the laws are clearer. Eat right, exercise regularly and look both ways before crossing the street.

EDITOR'S NOTE: A former state assemblywoman from Jersey City, Joan Quigley is the president and CEO of the North Hudson Community Action Corp. in Union City. Her column appears in The Jersey Journal every Tuesday.

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