Learn How to Preserve Your Data with Take Control of Your Digital Legacy

Digital Asset Estate Planning

Most people that have done an estate plan have made provisions to distribute their physical, tangible assets. However, a glaring need exists for people to address and make a plan for their “digital” assets. These digital assets take many forms and there is no one clear definition of what digital assets are comprised of. This article seeks to address what digital assets are, how to make a plan for those assets, and how to clearly define a plan for those assets.

What Are “Digital” Assets?

Digital assets include everything from text/images to multimedia information. The number and type of digital assets are virtually unlimited. This information may be transmitted via Internet or social media or uploaded using online storage devices. All of those pictures and photo albums that we treasure and upload for safekeeping are considered digital assets. Our conversations on Facebook, Twitter, and LinkedIn count as well. Our online banking, PayPal, and Amazon accounts fall into this realm. Our website addresses, blogs, and domain names count too. Essentially, everything that we do online that requires a login/password is governed by digital asset rules. These rules are different for every online medium. Unfortunately, with the pace of technological innovation the rules often have a difficult time keeping up.

What Happens to “Digital” Assets at My Death?

This is a great question and one that has a multi-faceted answer. As with most things in the law, the answer is that it depends. Since most of us do not read the Terms and Conditions before we select “I Agree”, we are generally unaware of how these digital assets are treated.

Many online user agreements require that your account be terminated at your death. See Yahoo! Terms of Service. Other user agreements allow for a deceased person’s account to be “memorialized” wherein only certain people may view the page after the death of the account holder. See Facebook Terms of Service. Still other user agreements do not discuss what happens when the account holder passes away. See Google Terms of Service. The only certain answer is that there is uncertainty as to how your digital assets will be handled upon your death.

Can My Executor Access My Files After My Death?

The answer to this question is that it depends upon the user agreement associated with each particular digital account. Some people are willing to give family members or friends the login instructions for each digital account. Be warned that this may subject the family member or friend to criminal prosecution (at both the federal and state level) because it may exceed the access granted in the user agreement.

Can My Power of Attorney Grant My Agent Access?

Some people put explicit provisions into a durable power of attorney authorizing the agent to access their digital accounts during period of incapacity. It is important to note that all powers of attorney are void at the instant the principal dies. So after the death of the principal, in addition to potentially committing a state and/or federal crime by accessing the digital accounts, you are further committing a crime by using the power of attorney after it has been invalidated due to the principal’s death.

How Can I Make a Plan?

Due to the legal uncertainties of digital asset planning, a variety of methods may be employed to help carry out your wishes. First and foremost, you should create a back-up copy of your digital assets using tangible media. This could be a CD, DVD, external hard drive, or flashdrive. The tangible copy can then be stored in a safe place such as a safe or safety deposit box. This method works well for photo albums and family memories, but requires constant updating to maintain accuracy regarding social media, email, online banking, and other “real-time” accounts. With that being said, it is still a good idea to utilize this method.

The next step is to make a comprehensive inventory of your digital estate in writing!! This means taking the time to write down all of your user ids, passwords, websites, and security questions. It makes sense to store this list with your will and power of attorney in a safe place. One could also utilize an online password storage service. Upon your death or incapacity, this list can be delivered to your executor (along with the will) or your agent (along with the power of attorney) for his or her use.

Additional Strategies

One innovative way to handle your digital assets is to create a revocable trust to hold the assets or use an existing revocable trust to place the digital assets in. The primary benefit of using a revocable trust to hold digital assets is PRIVACY. Upon your death, the assets held in a revocable trust pass outside of the probate court system which ensures that the information is not for public display. Additionally, since you create the revocable trust, you can instruct the trustee as to how you want the trustee to manage and dispose of the digital assets should you become incompetent or pass away. This method maintains your privacy and allows you a significant degree of control over those digital assets.

Call Green Law, PLLC today at (806) 548-2953 to discuss your estate planning and digital estate planning needs. We have helped hundreds of clients achieve peace of mind, provide a seamless transition upon their deaths/incapacity, and provide a meaningful and lasting legacy to their loved ones. We look forward to working with you!!

Online Life After Death – Digital Asset Estate Planning

Online Life After Death – Digital Asset Estate Planning

Most of us have a significant presence in the digital world whether we realize it or not.

If you were to list all your digital accounts and assets, the number would probably surprise you. You may have online accounts with banks, merchants, a brokerage firm, social media platforms, cloud storage companies, gaming sites and email providers. Perhaps you have a blog or own a number of domain names. Some items such as your digital photo collection or your Facebook log may not have a monetary value, but they may have personal meaning for your loved ones. Other items may range in value from coupon credits accrued with your favorite online retailer to a significant balance in a PayPal or even Bitcoin account. You may have thousands of frequent flyer miles, a cash-back reward balance from your credit card company, or an online trading account balance. Your online business presence may include eBay, Etsy or your own web-based company.

Whatever monetary or personal value these types of examples may possess, digital asset estate planning is essential to ensure that your online life after death is handled in an orderly manner according to your wishes.

In addition to online accounts and assets, your personal digital devices and their content should be considered as well.

Your computer or laptop as well as your tablet, e-reader, cellphone or smartphone and all manner of offline storage form part of your digital estate. These storage formats include CDs and DVDs, peripheral storage drives, and memory cards. Tangible paper records are becoming increasingly a thing of the past; for most of us, it is the digital trail we leave that tells the story of our personal, professional and financial lives.

The conductor and composer Leonard Bernstein, an icon of 20th-century classical music, passed away in 1990 and left behind a memoir called Blue Ink in a password-protected computer file. He did not share the password, and so far, no one has been able to access this presumably significant work. Clarifying your wishes regarding your digital legacy is crucial to any well-formulated estate plan. You can start by providing your executor a complete digital inventory together with the necessary means of accessing it.

Digital Assets – A New Frontier

There’s more to consider, however. From a legal perspective, the status of digital assets within estate planning is a new frontier. They may fall within intellectual property, intangible assets or license categories.    While it may seem reasonable to assume that a next-of-kin could simply step in and manage or dispose of digital accounts, this is a risky endeavor. Federal and state laws designed to prevent hacking, identity theft and online fraud can inadvertently prevent loved ones or your executor from legally accessing your digital assets if you die. Many sites and account issuers allow only the primary account holder to enjoy access and can be inflexible on that point.

In Ellsworth vs. Yahoo, a 2005 legal case out of Michigan, the father of a Marine killed in Iraq was forced to seek access through the courts to his son’s Yahoo email account after Yahoo initially refused to provide it. Yahoo eventually complied with an order to produce the email records.

While the need for a court order is extreme, some platforms such as Gmail, Flickr and Twitter request a death certificate and related documents to gain access to accounts and records. Some states such as Oklahoma and Connecticut have introduced statutes designed to provide access to the deceased person’s email and social networking accounts, but comprehensive digital asset protection and disposition after death remains a complicated matter best discussed with your estate attorney.

As stated, the goal will be to identify a complete inventory, directions for access and any information necessary for your digital assets to be valued accurately. You may prefer that some records be destroyed and the accounts closed upon your death while others be willed to specific individuals. You may wish to bequeath your laptop to one person but prefer the contents be destroyed or given to a different heir. The importance of specifying your exact wishes is not to be underestimated. Our digital lives have grown and will continue to grow exponentially, and the peace of mind that estate planning affords will remain elusive until you include your digital assets in this important endeavor.

Don't Let Your Digital Assets Die With You

Digital Estate Planning Law

The May 2013 issue of the Internet Law Researcher newsletter (which is available to members of the Duke Law community through Westlaw‘s GLILR database) rounds up a bibliography of legislation and articles related to digital asset estate planning. To locate the article in Westlaw Classic or WestlawNext, use the citation 18 No. 5 Internet L. Researcher 1.

Planning for death has always been an uncomfortable and difficult topic for most people, and the growth of social media and other online accounts has added a new layer of complexity to sorting out the affairs of the recently deceased. Author Ken Kozlowski describes the current situation as “a big mess” in which “the federal Stored Communications Act (SCA) [is] being cited as a reason for services such as Facebook to withhold access to deceased individuals’ accounts, passwords, stored photos, etc.” Five states have passed legislation related to control of deceased individuals’ online accounts, and undoubtedly more state legislatures will follow suit.

The Internet Law Researcher article recommends a number of publications from legal and mainstream sources, including the recent law review student note by Maria Perrone, What Happens When We Die: Estate Planning of Digital Assets, and the blog Digital Passing. The recommended resources offer tips for developing a plan to handle digital assets after death, and serve as a good supplement to the Goodson Law Library’s collection of estate planning guides, most of which do not discuss digital assets in detail.