Isn’t it fun keeping track of all the different user names and passwords required in a digital world? I updated my own list a week ago and I had 52 of them, 3 with Apple alone. If you think it is tough getting into some websites now, can you imagine what happens when someone dies and their digital information needs to be accessed? It can be a mess. Leonard Bernstein died in 1990. His password protected memoir Blue Ink has not been broken into yet.
Online accounts have expanded exponentially. Digital accounts and property may greatly exceed an individual’s paper records and lists of those records. We are now at the beginning stages of how to include digital assets in estate planning.
On April 19th, Robert W. “Bobby” Pearce, Jr. of Smith Moore Leatherwood LLP presented “Digital Estate Planning” to the Estate Planning Council of Charleston. My take away from his excellent presentation is that with the explosion of digital assets, all of us must rethink our estate planning. Who owns the digital assets? Who can access the assets? In short, Bobby suggested that currently, the “rights of representatives, executors, beneficiaries and others are as clear as mud.”
Digital assets are any online property you own including any file, email, documents, photos, videos and images stored on digital devices including desktops, laptops, tablets, smart phones and other storage devices. Digital accounts are email accounts, software licenses, bank accounts, social networking accounts, domain names, professional accounts, personal accounts and other online accounts.
Mr. Pearce indicated that the current legal status of online property records is largely dealt with by each online website’s Terms of Service (“TOS”). And TOS’ differ greatly. For example, for yahoo, the account is nontransferable and will be deleted after 90 days. Google requires a cumbersome process to obtain access to an account. Ultimately, court orders may be needed in both situations. Only one state, Oklahoma has passed legislation dealing with digital property. The question is, does the statute trump the TOS contract? And what happens in the other 49 states?
There are other issues. What is the value of your digital property? Domain names and copyrighted work online may have commercial value. And what about the personal and emotional value of photos and videos on Flickr, You Tube and other sites? Who should be in charge of your online accounts, user names and passwords when you die? What will be your instructions to the person?
At a minimum, you should get the following done now:
- Inventory your digital assets of all types and locations
- Identify the person to handle them
- Provide a list of accounts, user names, passwords, PINs and answers to security questions
- Instruct your designated person with how you want these to be managed
- Provide authority through a digital asset POA or other means
In short, it’s time to put your digital asset affairs in order.