Death and Digital Assets – Estate planning in the 21st century

Digital Assets and Estate planning. The Law Offices of Michael Kuldiner, P.C.

What are digital assets?

We live in the age of information, where much of the world has access to the internet and most Americans have accumulated plenty of digital assets, whether they are aware of that fact or not.

Digital assets can include a wide variety of different types of digital information. Things like your email accounts, social media profiles, blogs, websites, bank information, utility log ins, credit card accounts, domain name properties, photo-sharing services, etc. are all considered to be digital assets.

These informational assets are now being recognized as tangible property and they can have substantial value in terms of either real dollars or sentimental worth. However, the rules and laws governing digital estate planning have not yet caught up with the speed of digital information.

New laws for a new frontier

Laws are often slow to catch up to progress, especially when that progress has grown at such lightning speeds as that of the internet. There are currently no federal laws regarding what happens to one’s digital assets after death.

Despite the absence of federal laws regarding digital assets, 25 states so far have adopted laws that will govern how people’s digital assets are handled and who can access them after an account owner’s death.

In addition to the strides made by new state laws for digital assets, The Uniform Law Commission has created the Fiduciary Access to Digital Assets Act(FADAA). This act was formed to give a beneficiary complete access to their heir’s digital assets. There is still much work to be done in governing what happens to someone’s digital estate, but these new laws are a step in the right direction.

Blocks to access

The current laws governing digital assets leave many obstacles to be faced by loved ones trying to sort through your digital estate. Currently, each online service provider has its own separate lengthy and confusing terms of service or privacy policy. These terms, which you usually agree to by merely using the service, often do not allow you to transfer your account to someone else, even after your death.

If it weren’t enough of a headache trying to decipher each online privacy policy, there are also federal computer laws that can impede the process further. For example, using someone else’s password to log onto one of their accounts, even if the user has given permission, can still violate the Federal Computer Fraud and Abuse Act, an act that governs unauthorized access to computers.

Although much of the tech industry is still playing catch-up when it comes to allowing an heir access to your digital assets, some companies are beginning to help users with planning their digital estates. Yahoo.com currently includes language in their terms of service that says, “any rights to your Yahoo ID or contents within your account terminate upon your death” and adds that accounts can be deleted if a death certificate is provided to them. Google also recently introduced a feature that lets users specify whether their account should be deleted or passed on to other individuals after a certain period of inactivity.

Planning your digital estate.

The first thing you should do when planning your digital estate is to create a list that includes all your various digital assets. Creating a password protected Microsoft excel spreadsheet is one way in which you can organize your digital estate. Make sure that your list includes all your digital assets and use the headings – description, web address, user id, password, account number, and special notes to organize your digital estate.

Next, you will need to either save your password protected document to your computer or use a password encryption service like Lastpass.com to make sure your private information is protected. It is extremely important that you not put any private information such as your passwords in your actual will because this will become a public document.

After you have completed your list of digital assets you should write down exactly where that information is stored on your computer and the master password that is needed to access it. This information should be kept in your safety deposit box or in your attorney’s safe. You may also consider signing a statement that can be drafted by your Estate attorney that authorizes any company who holds information on you online to disclose that information to the executor or representative of your will.

Digital assets are a new and still somewhat confusing area of law in estate planning. It is important that you take steps to ensure that loved ones will be able to manage your digital assets according to your wishes. It is recommended that you speak with a qualified Estate Planning Attorney to make sure that digital assets are included in your estate plan.