As I mentioned in Part 1, TSA’s both define your relationship with the service provider/host and determine which tools you will use to assist your agent with accessing, distributing, and/or deleting your digital assets. So, review them – each one — carefully. They’re all unique. Some companies are trying to stay ahead of the game and write their TSA’s with specific instructions on how to allow your agent or relations to access accounts and materials. Make a note of those instructions. Other companies tell you what they will and will not do, and sometimes include the “and here’s why” explanation. Make a note of those, too.
Keep in mind that TSA’s are unique even within a particular category of asset types. For example, not all email providers are the same, nor do all financial institutions or social media hosts agree. So, if you’re a Yahoo! user, don’t assume that Google’s or Hotmail’s TSA’s will define your TSA with your provider.
M. Perrone’s law journal article, What Happens When We Die: Estate Planning of Digital Assets, again offers a helpful outline of some of the differences between many of these hosts/service providers. Some TSA’s generously provide, “Let us know how you want to handle it.” But some say, “You’ll have to take legal action to gain access – otherwise, you can’t have it.” Or, “We’ll delete the account for you, but we will not give you access.” In many instances, you have to start by providing a death certificate and some writing that proves the owner intended for you, the agent or relative, to control the materials or have access to the account. Facebook has a “memorial state” which, upon news that the user has passed away, allows friends and family to post while controlling access to others. It is also willing to simply delete the account.
For access to a decedent’s YouTube account, you need Power of Attorney. If you have digital assets that include a licensing TSA, like iTunes for example, the license to use what you purchased dies with you. Ownership, in this case, is a concept that exists only as long as you’re alive. Websites that are actually registered in your name, on the other hand, will pass to your heirs as actual property and can be treated traditionally as such.
In any case, when you agree to the terms of service, you are bound by those terms. So, the only way to prepare for the planning process is to know what those terms are. Read the whole thing and make sure you understand what it says. You’ll find it easier once you’ve read one carefully. You’ll develop a context to compare and contrast the others, and it will assist you in articulating the differences between them and determining the plan for what to do in each case to protect your digital assets.
Part-3 of Covering your Digital Assets – Develop a Plan will appear shortly.
ALL READERS: This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader. It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.
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