Estate Planning & Digital Assets

In the digital, virtual, online world we live in, account
passwords both protect and frustrate our access to valuable intangible assets.  As more of our valuables consist of intangible
digital assets and accounts stored online, the troublesome issue of access these
intangible assets is one of ever growing importance.  Let us consider what we can do to safeguard future
access to our digital assets and online accounts by enabling persons we trust
to access them should we become incapacitated and when we die.

First what is a digital
asset?  “A digital asset is any
item of text or media that has been formatted into a binary source that
includes the right to use it. … .” (van Niekerk, A.J. 2006)  Common examples of digital assets are online
bank accounts, e-mail accounts, electronic media, online blogs, online shopping
accounts (e.g., Pay-Pal and E-bay), and online social media (e.g., Facebook).

Nowadays with many
people spending so much of their time and efforts online they are creating
important digital assets and accounts; assets that their families will want to
access after their death.  We have all
heard about the families of deceased veterans who wanted to access a deceased
soldier’s private e-mail accounts for sentimental and family reasons.  These families were forced to sue
internet giants like Facebook, Google, and Yahoo!  in order to overcome obstacles regarding
access by others when an account owner dies.

So why are such companies unwilling to allow
families and even executors access to a decedent’s account?  The reason is the 1986 federal Stored
Communications Act (18 USC section 2702).
It protects an account owner’s privacy (above all else) and makes it a
crime for third parties, such as Facebook or Google, to give access to anyone
else, without authorization from the
account holder, to a portal through which electronic communication is
provided. 

So what can we do?
First, we can inventory all of our online accounts, passwords, and
encryption protocols so that our agents, and whoever administers our estate,
have password access.  Nowadays there are
even companies that provided “digital password vaults” where all of one’s
account information can be stored in one place. Much grief and trouble can be
avoided simply by having inventoried our accounts and their passwords and
making that inventory available to necessary parties.

Naturally, there are some digital assets that are
highly personal, perhaps including one’s Facebook account or an online blog
that one may not wish to have accessed by anyone else after death.  With respect to these assets, one may decide
not to share the account password and enquire with the online company regarding
destruction of the contents after death.

Second, subject to limitations imposed by end user
license agreements of the online company that has custody of the digital asset,
we can assign ownership to some of our digital assets to the trustee of our living
trust and/or include special provisions within our powers of attorney and our wills
that give the agent and executor power to access these digital assets.

Third, we can be selective as to which online
companies we use.  Read each company’s
End User License Agreement (“EULA”) and Terms of Use.  The agreements of Google, Facebook and Yahoo!
vary significantly from each other. These license agreements control the terms
of release of the contents of an account, access to an account, and transfer of
an account through probate. 

Our digital assets and accounts comprise our digital
estate.  As discussed, the intangible
digital estate is subject to very different rules than those that control our
traditional tangible assets.  Different problems
and different safeguards are required to protect our interests and loved ones.