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The Care and Preservation of Your Digital Assets (Part 1)

The Care and Preservation of Your Digital Assets (Part 1)

Eleanore

How many of you get “paper” bank statements?  How many you write “paper” checks to pay your monthly bills?  How many of you pay your bills through automatically scheduled payments?  How many of you store and save your personal information on your computers and on third party sites? And what happens to this information if you are no longer around?  Can your family get access to it?

According to a 2011 Census more than three-quarters of all Americans owned a computer.  That number increased to nearly 90% of all Americans who had a bachelor’s degree or higher.  Today, the vast majority of the population owns a computer and with it, what are now referred to as “digital assets”.

A digital asset has been defined as “information created, generated, sent, communicated, received or stored by electronic means on a digital device or system that delivers digital information.”  In common parlance, digital assets include personal information contained in:

  • Online accounts with financial institutions (e.g. banks or credit card companies)
  • Social media accounts such as Facebook, LinkedIn, YouTube, Twitter, where a third party allows the account holder to store personal information
  • Online accounts with forums such as Amazon, eBay or Craigslist, that not only allow users to buy and sell but facilitate such transactions with on-line currency accounts such as Paypal.
  • Reward programs, such as frequent flyer miles or reward points.
Digital Estate Planning

Digital Estate Planning

Eleanore

Mostly everyone has an estate. An estate is nothing more than the personal property you have left over after you pass away. Estate planning is nothing more than planning for what you would like to have happen to your property after you pass away.
If you think about it, most people have some kind of an “estate” that they need to plan for. In fact, with the amount of digital assets that most of us have on our computers or online, our “estate” can become quite significant.
For example, how much have you spent on iTunes since you began your account? Are all of those songs and movies worth something? Absolutely.
What about all of the pictures that you have taken and posted on Facebook or Pinterest? At the very least, there is significant sentimental value in all of those photos and thoughts recorded.
Websites like Facebook and Pinterest are the most common version of journalism that exist. Wouldn’t you like to pass all of those memories on to your loved ones?
If you think about it that way, you have much more of an “estate” than you might have thought. However, until recently, there has been little in the way of legislation that could help you preserve all of your online assets.
Current Nevada Laws
In Nevada, we have a law signed into effect on June 1, 2013 that gives the personal representative of a deceased person’s estate the power to direct the termination of any online account or similar electronic or digital asset of the decedent. This law allows individuals to cancel accounts that may be incurring charges; however, this law does not
address powers to access these accounts or copy the contents, and it only applies to personal representatives.
There are currently no laws in Nevada designed to protect an individual’s assets from being lost in cyberspace. When someone passes away, unless the correct login information has been saved somewhere accessible or passed on to those they want to have access to their accounts, the digital assets in those accounts are lost forever.
Contrast with Delaware’s Laws Delaware has traditionally been on the forefront of establishing new estate planning laws. In order to keep up with the precedent, Delaware has just passed a new set of laws that has pushed them ahead in the world of digital estate planning. This new law allows loved ones to access online accounts after that person’s passing.
The act called “The Fiduciary Access to Digital Assets and Digital Accounts Act” (HB 345) was signed into effect on August 12, 2014. This new law broadens digital access for legal heirs and closes one digital estate planning gap. The Delaware House Democrats have called this new bill the “first comprehensive state statute dealing with the disposition of a decedent’s digital assets in the nation.”
The major impact of the act is to carve out a procedure by which executors of a dead person’s estate can request access to any of the deceased’s digital accounts or assets. After sending a request that complies with the law’s requirements, a custodian for a digital service or account has 60 days to comply with that request.
So far, Delaware’s Fiduciary Access to Digital Assets Act is the most comprehensive law of its type that has been enacted. Some states have attempted to protect the deceased’s loved ones with “Facebook after death” laws; however, none have come close to being as comprehensive as Delaware’s laws.
Nevada is traditionally not far behind Delaware in enacting estate planning statues. So, it would behoove us to consider the terms in this new Delaware law and how it might also impact Nevadans as we contemplate the adoption of a similar law.
Delaware’s Digital Estate Planning Limitations
When Delaware’s digital estate planning law goes into effect on January 1, 2015 it will not be a perfect solution that will solve all digital estate planning issues.
Some skeptics feel that this new law may expose private third-party communications to heirs. The Delaware law in its current form does not take into account highly confidential communications to decedents from third parties who are still alive. For example, doctor records, psychiatrist communications and clergy confessions might all be exposed under this new law.
How You Can Plan Today Technology is ever evolving and the state laws must keep up with the changes in order to provide the proper amount of protection.
Technology is changing the way that we interact with people and conduct business. In the course of our daily lives valuable digital records are being kept in our smartphones, computers and website accounts. We will need to be proactive so that our loved ones and fiduciaries can access this data after our passing.
Given the state of today’s Nevada laws it is advisable that you make a list of all of your valuable or significant data, online accounts and digital property. This list should be kept with your Living Trust or Will. Make sure you indicate how your executors or trustees can find each item listed, how to access it and why it is something that would be valuable to them. You can also regularly back up all of your digital assets to a hard drive, flash drive or disc. These storage mediums can also be kept with your estate planning documents in a secure location.
Next, you should contact your estate planning attorney to include plans for your digital property in your estate plan. Be sure to include instructions on how you would like your digital property divided. This process may include preparing a Living Trust, a Will or a durable power of attorney (depending on your particular situation).
Planning for your digital property is one more aspect of estate planning that must be considered. In order to keep estate administration costs down, provide for a smooth transition and ensure that all of your valuable digital property is not overlooked, the proper steps must be taken.

Controlling your digital legacy

Digital Inheritance

Eleanore

Digital is scary. Dead are the days of DVD and CD. You probably already noticed that. Our up and coming generation will never have that tangible experience, like you and I did once in our life time. And that’s the sad truth.

That sense of ownership is gone. It seems companies are going this route really fast. Taking things away from you — convincing you to trust them. My point.  Are we left with anything to pass on? Will my children inherit the digital music, movies, and softwares I’ve acquired? Should my Apple ID and password (along with other credentials) be part of my will? What will happen to these companies 50 years from now and my stuff invested in them.  As I ask myself this, I’ve come to realize that we have a humongous digital responsibility.

While corporations are following a subscription based models — leaving us with nothing to own. The little bit we do own like movies and songs on iTunes, Google Play, or media in a “cloud” needs a heir.

Have you ever thought about of this?

Because when’s the last time you printed your mobile pics, backed up songs on a physical drive, backed up the physical drive on a another physical drive? How many close loved ones have access to your passwords? Do you even list your passwords and keep them in some kind of vault or spreadsheet?  How about social media and all the contents you placed in it? Who carries on your name, brand, or keep its?

Wow, this is serious. It’s your and my digital estate we’re talking. While maybe you don’t physically own these things, it doesn’t mean they don’t have value. They do.

I want my grand-kids to have access to my paid apps, The Incredibles movie on iTunes, and my awesome music collection. That’s my digital legacy.

Hmm, food for thought.

What is Digital Estate Planning and Why Do I Need it?

Digital inheritance becomes growing issue for online generation

Eleanore

It’s been nearly five years since Korean actress Choi Jin-sil died, but her public homepage still lives on in cyberspace.
The site now acts as a digital memorial for the nation’s beloved leading lady, as her fans continue to leave messages of sympathy and appreciation.
Though many photos and journal entries remain online, there hasn’t been a single update since her passing.
Unfortunately due to a lack of legal precedent, even Choi’s family members are unable to manage her account.

“Though there are no current laws that exist to allow family members of the deceased to gain administrative access, the personal site can still be shut down. However, some choose to leave it up.”

The matter of digital inheritance remains a hazy area of law at home and abroad.
It centers around the the fate of our digital property, such as emails, online photos and social networking messages, after we die.
In recent years, an increasing number of families have been voicing a right to reclaim their lost loved ones’ online assets.
International websites like Facebook and Twitter let users decide what they would like to do with their accounts after a period of time, whether it be giving a farewell message or deleting all information.
Meanwhile, the growing public demand for such services has prompted Korean lawmakers to push for broader policies and practical solutions to this problem.

“When you join a portal site and give your personal information, you should also be able to specify what you want to leave behind. This is why a digital inheritance law is needed.”

As we upload more of our lives online, the more significant and larger our digital inheritance becomes.
And in every case, a choice should be given to either leave it as our lifelong legacy or allow our family and friends the peace and closure they deserve.
Paul Yi, Arirang News.

Online passwords added to inheritance wills

Online passwords added to inheritance wills

Eleanore

Around a quarter of adults in the UK have around £200 worth of music, film and video, according to new research, and the total amount passed on through digital inheritance amounts to £2.3bn.

In a poll of 2,000 people, on- third considered their digital possessions valuable enough to pass on, according to cloud computing company Rackspace, while 11 per cent have already put digital passwords in their wills.

Billions of pounds worth of digital media is stored on sites such as Flickr, Facebook and various email providers. But if passwords are not passed on after death, they won’t be accessible to loved ones.

Rackspace found that 53 per cent of people held “treasured possessions” in these services, including photos, videos and sentimental emails.

Lawyers said that the passing on of internet passwords marked a change in inheritance trends and urged people to consider asking loved ones to log on for their inheritance.

Matthew Strain, partner at London law firm Strain Keville, said: “People have not yet come to grips with the value of these digital possessions and the risk is that they may be lost if the owner dies, or even that their estate may be liable for ongoing subscriptions to online magazines or newspapers, for instance.”

By 2020, a third of people are expected to store all music online while a quarter of people polled said that all their photos will be kept online.