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.
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!!