Introduction. Because we engage in so many activities on line, estate planning for
“digital assets” is increasingly important.
The phrase
“digital assets” can encompass many things, including contents of an iTunes
account, ebooks on a Kindle, postings on social media accounts, such as
Facebook, Twitter, or Youtube, and email accounts, among others. Some of these items have monetary value, and
some have mainly sentimental value. So what
happens to these digital assets after death?
Law is still developing. In fact, there is no clear answer because the law in this area is still developing. Some assets are not transferable legally, but may be available to family members as a practical matter. Another legal issue is that various federal laws prohibit anyone other than the account holder from having access to email and similar on line accounts. So for now it’s a piecemeal answer that depends in part on the user or terms of service agreements for the various assets. However, there are some steps you can take to plan for digital assets.
Identify assets. The first step is to identify the assets. For example, perhaps you have two email accounts, an iTunes account, a Twitter feed and a Facebook account. It is also important for this purpose to include accounts that are not in themselves digital assets but that provide access to assets through on line portals – for example, bank accounts, brokerage accounts, credit card accounts, etc. It will be quite difficult to handle your financial matters in the event of incapacity or death without that information.
Maintain accessible but secure list of user names and passwords. Write down all user names and passwords for each asset and/or account and keep the list in a safe but accessible location known to loved ones and/or your legal representative. There are also online secure user name/password storage systems – but in that case be sure the password to gain entry to the system is in a safe but accessible location known to loved ones. Also be sure loved ones know the passwords of your actual computers and electronic devices. In one reported instance a woman left her iPad to her family but they could not access it because they did not have the necessary user name and password – the family described the iPad as a “shiny placemat” while they tried to get Apple to release the information.
Decide what should happen to the assets. The next question is – what should happen to the assets? Assets with sentimental value, such as email or a Facebook account, are often the most important to loved ones, substituting for the cherished home movies, box of photos or packet of letters of an earlier time. On the other hand, perhaps you do not wish to grant access to all or some accounts. Some social media and other digital platforms have adopted policies about what happens to accounts at death – in other cases the situation is less clear.
Facebook has a policy allowing loved ones to maintain a Facebook account after death as a memorial. Facebook also recently announced that it would permit memorial accounts to be more public based on privacy choices made during life, and that it would create “look back” videos upon request. However, apparently some relatives have felt the memorial page is too restrictive and have maintained the Facebook account in active mode; regardless of the legalities, they were able to do this as a practical matter because they had the user name and password.
Google has a service called “inactive account manager” that permits you to name a person to receive the contents of all google accounts (gmail, YouTube, google+, etc.) if your account becomes inactive, including by reason of death (or, presumably, prolonged incapacity). On the other hand, Yahoo has a policy denying access to email accounts. In fact, in what is probably the most notable digital asset case to date, Yahoo required a court order to give the family of a deceased marine named Justin Ellsworth copies of his emails.
The status of music and other content downloaded from iTunes is actually rather murky. Given the significant dollar value of iTunes and other digital content, as well as the personal nature of these items, there really should be a mechanism for giving or bequeathing them at death to loved ones, in the same way one could, for example, transfer a collection of CDs or vinyl records. Unfortunately, that is not the case. The iTunes user agreement says downloaded content is held on a personal license, which probably means it can’t be transferred to others and expires at death. However, it is not clear what that means as a practical matter, especially given that often family members share a single iTunes account across multiple devices.
Include language in planning documents to help an Executor, Trustee or other personal representative gain access. Ideally an Executor or personal representative should be able to deal with your digital assets, both in terms of accessing them and then transferring them to loved ones, the same way they can for any other personal asset, like a car, jewelry or work of art, but the law is not yet at that point. Legal access to the accounts holding the assets is a tricky question, and depends on state law, federal law and the user agreements. At the moment the best advice is to include a detailed provision in your estate planning documents (Will, revocable trust and/or power of attorney, as the case may be) authorizing your executor, trustee, or other legal representative to access your accounts and handle your digital assets.
Disclaimer – Postings
Not Legal Advice
This blog is not legal advice and no attorney-client relationship is formed. The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature the information and materials provided may not apply to any specific circumstances. Nothing on this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with an attorney licensed to practice in your jurisdiction.
