Quigley: Digital estate assets in a cloud of confusion

Quigley: Digital estate assets in a cloud of confusion

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.

Funerals and Instagram: A look at the funeral hashtags

Why Executors Worry about…Digital Assets

Do you know what digital estate assets are?

As an estate trustee, you have to secure estate property. This can include protecting valuable digital property.

Here are some digital estate dos and don’ts for executors.

Electronic or digital information can be a digital asset. It can be stored in various electronic devices such as hard drives, computers, tablets and cellphones. Information can be stored in memory devices, networks, online or in the cloud.

As an executor, you are required to collect estate assets. You will need to include devices with digital or electronic information.

Digital assets may have value. This can include:

  • emotional (family photos, videos, music)
  • financial (business websites, domains, blogs)
  • creative (copyrights, unpublished manuscripts, musical compositions)

It may be difficult to distinguish what is valuable.

How Do Executors Get Access Get a head start with a list of a person’s usual websites, user names and passwords. This assumes the person who asked you to be executor can prepare a list.

You may need to hire a tech wizard to gain access to the deceased’s digital world.

Social media sites may be controlled by user agreements. These may dictate that a user has no property rights. The user only has a license and access to the network. The user agreement may also specify that a password is non-transferable.

The legal situation is not clear for executors. Most social media sites rely on their user agreement. These prohibit access and can deny estate trustees the right to deal with content.

Digital asset legislation, if it exists, varies by jurisdiction. Some areas have statutory rules. As yet, no uniform laws exist to create a code of conduct.

Executors have little guidance from court decisions. Few cases have ended up in court over digital property.

A clear understanding of your executor’s rights and responsibilities may not be possible.

You, as executor, may not know how to deal with digital accounts. You may not be able to identify what electronic files should be closed or maintained.

You must, however, take control of online financial information.

Online identity theft is common but difficult to detect.

Executors may not find paper bank or credit card statements. Utility accounts may be preauthorized and paid from electronic accounts.

Be aware that you may need to stop or close online bank, credit card or e-trading accounts. These personal financial resources need to be protected.

Even emails and voicemails may need to be examined. These may require access usernames and passwords.

Reward and loyalty programs for airline, shopping and membership rewards may exist. These may be non-transferable or transferable within a limited time, subject to specific conditions.

Common Questions without Answers

How should executors deal with online photos, videos and materials? Should they make copies of online materials?

Should domain registrations, website and blogs be preserved?

Will the business website need to be maintained?

What about membership and online subscription lists?

I welcome your thoughts on the best way for executors to deal with digital assets.