Traditionally, estate planning attorneys and courts have divided property into two categories, real property, and personal property. Estate planning attorneys have developed excellent ways to address the disposition of real and personal property.
Recently, however, there has been a third category of property that many refer to as “Digital Assets” that requires special attention. The law is still being developed on how to transfer digital assets upon death, so planning for your digital assets requires special attention.
Additionally, most digitals assets are governed by the terms of the user agreement (very very fine print) that you agree to when you obtain your digital assets. (Think Apple Terms and Conditions) DI
What are Digital Assets?
A digital asset is a digital file on a computer, digital device, or online account, that a person owns or has a license to use. Here are some common examples of digital assets:
- E-mail accounts (Outlook, Gmail, Yahoo, Etc.)
- Websites, domain names, blogs
- Online banking accounts and financial service accounts
- Online subscriptions
- Digital pictures, videos, Audio files, and other documents (YouTube, Flickr, iTunes, GoogleDocs etc.)
- Social networking accounts (Twitter, Facebook, LinkedIn, Google+)
It is important to understand some digital assets are not owned outright, like the ownership you have when you purchase a CD. Some digital assets are merely licenses to use a digital or online service. With that said, it is very common for these licenses to expire upon the license holder’s death.
While this may seem unfair (especially after paying the same price you would pay for a tangible item like a CD) you most likely agreed to this arrangement when you clicked through the long user agreements when signing up for the digital service.
Why is estate planning for digital assets important?
The reason you should plan for digital assets is the same reason you should plan for any asset- to make things easier on your loved ones when they are grieving. Recently, a widow in Canada was forced to hire attorneys when Apple told her that they required a court order before it would provide her with her deceased husband’s Apple password.
Private companies that provide the digital service (such as Apple) have their own Terms of Service Agreements and Privacy Policies which dictate how the digital assets will transfer upon the death of the user.
Digital asset providers place a very high value on the privacy of its users and that privacy continues after the death of one of its users. As you will see below, most companies will not provide the username or password under any circumstance. While it is extremely difficult to enforce, many companies forbid sharing account information or logging on to another users account under any circumstance.
Current laws on the transfer of digital assets upon death or incapacity
State and Federal laws that govern how property passes after death were drafted well before the widespread use of social media and digital assets, thus many are silent on the issue of digital assets. Because the law has been largely silent on digital assets, surviving family members are often unable to gain access to the digital assets and digital memories of their loved ones.
This, however, is beginning to change. Eight states – Delaware, Idaho, Louisiana, Oklahoma, Virginia, Connecticut, Rhode Island, and Indiana- have put in place laws that address certain electronically stored information upon incapacity or death. Additionally, Nevada has enacted a law allowing a personal representative the power to terminate the decedents’ social media accounts.
While not in effect yet, legislators in California introduced AB 691 which would establish the Privacy Expectation Afterlife Choices Act. The Privacy Expectation Afterlife Choices Act would set forth rules for protecting the decedent’s private communications and stored content, all while helping to facilitate the administration of the decedent’s estate. While we wait for the law to be further defined and tested, it is a good idea to create a plan for your digital assets in the mean time.
How to: Estate Planning for Digital Assets:
- In a Will: One option, while not ideal, is to place information relating to digital assets in your will. This may be helpful because the information will be kept safe with the will and your executor will have access to the information. One major downside is that the first step in the probate process is submitting the will to the court, which then becomes public record. Because of the lack of privacy, it is generally not recommended to put your digital asset information into a Will.
- In a Trust: A better option is to include your digital asset information in your trust. The trust can take ownership of the assets and may be able to survive the death of the user. One benefit of using a trust is that trust administration is private, so your personal information will remain confidential. The only downside to putting your digital asset information in a trust is that usernames and passwords are regularly changed and updated, which will require the grantor (person who created the trust) to amend the trust regularly.
- Separate Document: Some people create a separate document where they keep track of all of their usernames and passwords. While this is effective (because it is quick and easy to update), it may be difficult to keep private and raises the risk of identity theft or digital asset theft. One other problem with this method is that by logging into another users account you may be violating the digital asset companies user policy.
- Use an online afterlife company: There are several companies out there that will store your digital assets and instructions online. Some of these afterlife companies even have the option for users to send notes and e-mails to loved one’s after the user has passed away. Under this method, you would only need to have the afterlife companies log-in information in your trust which would provide access to all of your digital assets.
Deceased User Policies
As mentioned above, many digital account providers have their own set of user policies (Terms of Service Agreements and Privacy Policies) which dictate how their online and digital accounts are treated after the death or incapacity of the user. It is not uncommon for these to expire when the user dies. Here is a list of the current user policies as of January 2016 for some popular account providers:
Facebook & Instagram deceased user policy:
- Facebook’s Deceased User Policy: Facebook will not provide login information for someone else’s account and it is against their policy to log into another person’s account.
- Planning Ahead: If you have a Facebook account, you can elect to have your account permanently deleted or be memorialized after you pass away.
- What happens if there is no planning: If the user does not select whether they want their account memorialized or deleted, their family can request to have the account memorialized or deleted.
Google, Gmail, Google+ deceased user policy
- Google’s Deceased User Policy: Google does not allow another user to login to a user’s account and is not able to provide passwords for a deceased user.
- Planning Ahead: Google allows its users to determine who should have access to their information and whether the user would like for his or her account to be deleted upon death. Users can set this up through Googles “Inactive Account Manager”.
- What happens if you don’t plan?: Google has a team that will work with the deceased representatives or immediate family members to close online accounts. Google still needs to be notified that a user is deceased.
LinkedIn deceased user policy
- LinkedIn’s Deceased User Policy: LinkedIn only allows a users account to be deleted after a person is deceased
- Planning Ahead: You should include your username and password in your trust, or use a third party password management tool. If your loved ones have your account information, they can try and log in prior to closing the account to download the deceased’s contact information.
- What happens if you don’t plan?: Anyone can make a request to remove the deceased persons account.
Apple Account deceased user policy:
- Apple’s Deceased User Policy: Apple’s user policy states: “You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Licensed Application and, if you sell your Mac Computer or iOS Device to a third party, you must remove the Licensed Application from the Mac Computer or iOS Device before doing so. “
- Planning Ahead: If you have an apple account, you can include your username and password in your trust, or use a third party password management tool, but understand that by doing this you may be violating Apple’s deceased user policy, so tread lightly and seek legal counsel.
- What happens if you don’t plan?: Apple does not have an online process for closing an Apple ID. In order to do so, you must contact apple support.
Twitter deceased user policy
- Twitter’s Deceased User Policy: Twitter will not allow anyone other than the user to access the account, however they will work with an authorized representative of the deceased user’s estate to deactivate the account.
- Planning Ahead: Again, you could leave the log-in information to your Twitter account to a trusted friend or family member and they could continue using the account. In addition, there are third party services that create an automatic back-up of your Tweets.
- What happens if you don’t plan?: According to the Twitter policy “a person authorized to act on the behalf of the estate or with a verified immediate family member of the deceased” can make a request to deactivate the account.
Microsoft, Outlook, and Hotmail Accounts deceased user policy
- Microsoft’s Deceased User Policy: Microsoft has a team that will release a users content to a next of kin or a guardian. To ensure security, Microsoft will not provide a users password or transfer ownership of an account to the deceased. Microsoft’s team will take the content of the deceased (or incapacitated) user and transfer it on to a DVD, which they then ship to you. You can request the content by emailing Microsoft Custodian of Records at firstname.lastname@example.org
- Planning Ahead: You can leave your log-in information with a trusted family member or friend and they would be able to continue using the account.
- What happens if you don’t plan?: Your family can contact Microsoft’s Custodian of Records to receive the DVD mentioned above, however they cannot continue to use the account.
Yahoo Accounts deceased user policy
- Yahoo’s Deceased User Policy: Yahoo’s Terms of Service (TOS) state that a users Yahoo account and its content are not transferable in any event.
- Planning Ahead: Again, the best plan may be to share your log-in information with a trusted friend or family member; use an online service to store and protect your username and password; or put the log-in information into a trust.
- What happens if you don’t plan? Family members or a representative may request from Yahoo that the account be closed and any billing or premium services suspended. All content on the Yahoo account will be permanently deleted.
While it is not possible to predict the future, it is clear that more and more of our social and business interactions are being conducted digitally. Digital assets are an essential part of everyone’s estate planning checklist.
The more that our lives revolve around digital assets, the more important it is that they are able to be accessed by your loved ones. Find an estate planning attorney that is well versed in digital assets, and plan accordingly. In doing so you will help make the transfer of your assets much easier, and improve the likelihood that your wishes are upheld.
If you would like to talk about how we can incorporate your digital assets into your estate plan we would be more than happy to talk to you.