Could This Be Your Family…..? George, who passed away suddenly at 63, left behind his wife Ellen and his daughter, Gina, and two grandkids. George and Ellen had updated their wills after Gina married and their grandchildren were born. Recently retired, not enough had changed in either George’s or Ellen’s life to warrant an update to their wills, or so they thought. George had embraced the 21st century and felt pretty savvy about going paperless with his bank accounts, bills, and business records. He and Ellen loved keeping in touch with their grandkids on Facebook. George enjoyed photography and kept his collection current on Flickr. He was also an avid music collector who enjoyed an iTunes account.
Ellen started getting overdue notices for bills she was prevented from addressing because only George had been set up as a digital customer. At work, George’s business partner needed to expedite a digital newsletter notifying customers of George’s passing, but he didn’t have updated passwords. Frustration for the family boiled over when Gina wanted to use Facebook to create a memorial, but Facebook balked when Ellen or Gina tried to assume control of George’s account. Yahoo! wouldn’t give Ellen access to George’s email or Flickr account because of their privacy policies. Ellen now has many more practical problems in addition to the emotional distress. It’s pretty easy to see how important access to those digital assets becomes, not weeks or months after a death, but right away. George and Ellen could have avoided the turmoil by having a plan for his digital assets.
George’s story could be yours or mine, right? We merged with the World Wide Web, found our high school buddies, learned to communicate, and built a digital life without really understanding its ramifications or worth. Maybe this story fits your parents if you are a digital native or millennial. If you don’t consider yourself vintage, you have exponentially more to evaluate when it comes to digital assets.
What is a Digital Asset?
Wikipedia has a pretty good basic description, but I like to think of digital assets as things that you own and store on the web and/or web-based accounts that allow you access rights. You’ve probably noticed that digital assets usually involve a relationship between you, the owner, and the host of the site or the program you use. That relationship is defined by contract law with a Terms of Service Agreement (TSA), which is unique to each service provider and rarely read carefully by the user – myself included! Depending on the individual TSA, that contractual relationship still governs when you die, and it creates some conflict with your heirs and their property rights when they go to either use/access, give away, or delete your digital footprint. Therein lies the rub. Since there is no uniformity in these TSA’s, and since only five states (Minnesota NOT being one of them) have written laws to address digital assets, it’s up to you to understand and plan for how your digital assets will be dealt with or distributed.
Which digital assets do I have?
A recent Law Journal article I read (M. Perrone: What Happens When We Die: Estate Planning of Digital Assets) is very helpful in categorizing digital assets into four easy-to-think-about types:
- Personal (email accounts, Flickr, iTunes, etc.)
- Financial (bank, stock, retirement accounts, purchase accounts like PayPal, and bill paying accounts, etc.)
- Business (client information, websites/blogs, domain names, logos, etc.)
- Social media (interactive accounts: Facebook, LinkedIn, Twitter, YouTube, etc.)
Make a plan – this will be covered in the next two blog posts. Hope you’ll stay tuned!
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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