5 WAYS TO PROTECT YOUR DIGITAL ASSETS

When you visit or call our office, we want you to feel comfortable discussing important issues concerning both you and your family. We also want to arm you with the information you need to make an informed decision about you and your family's future. For instance, many people have common misconceptions about their personal and business digital assets.   The following addresses some of those concerns:

1.   WHAT are Digital Assets?

The phrase “digital assets” has not yet become widely accepted nor a legally recognized term. However, the issue is clearly demanding attention.  Generally,a digital asset is a binary element owned by an individual or business. This includes all files and information stored in any online accounts, such as e-mailaccounts, social mediaprofiles (such as YouTube or Flickr), social networking profiles (such asFacebook), blogs, photo- and video-sharing sites, online music,online video games, online storage accounts such as “cloud” storage, and onlinesales accounts. This definition also extends to domain names and any intellectual property rights (such as copyrights, patents, trademarks, trade secrets, and the like), which may be associated with digitally-owned property.

2. WHY is Estate Planning for Digital Assets Important?

Identifying and creating a succession plan for digital assets could be very necessary in several instances, for both individuals and businesses. Who will maintain registered domain names or websites if the ownerof a business becomes temporarily unable to do so? Who will pay that company’s bills that arrive in paperless form without proper directions on how to do so? What happens to the business and personal financial records that are saved in a“cloud” if someone dies unexpectedly? What happens to blog pages, photos, and“tweets” if a person dies? By identifying your digital property and creating a plan on how to manage those assets in the event of a death, temporary or permanent incapacitation and/or guardianship, saves your designated agent or personal representative not only time but unneeded expense to save those items from possibly being lost forever.

 3.  HOW Can I Preserve My Ownership Rights ?

 Almost all account-based websites contain language stating that their offered services are solely for the individual account holder’s use and are not transferable under any condition. This means that once an account holder dies, a service provider can reclaim the username and all information that user established. Privacy laws and other factors in the U.S. prevent several Internet services fromallowing accounts to be assigned to other people, even if stipulated as such ina will. For instance, e-mail accounts, social media profiles, social networking profiles, blogs, photo- and video-sharingsites often require a user to agree to that Internet service provider’s Terms of Use Agreement.  However, this type of agreement generally permits the user (or his heirs) the ability to retain a proprietaryinterest in the content of those assets, if not the account itself (the contact list can be downloaded but the email address itself is not transferable). Comparatively, book, music and video directory sites, such as iTunes or Amazon Kindle only permit a user a limited license to access books, music or video directories, in accordance withthe Provider’s Terms of Service, without any type of ownership over those files. This means the content “purchased” reverts back to the Provider and is not downloadable by a third-party whatsoever. Furthermore, most states remain far behind the times, providing little or no legislation or case law regarding accessing and transferring digital assets at death. Regardless, there ARE steps a user can take to prevent having accounts closed upon death or incapacity, which includes compiling a detailed description of all such assets, instructions on how to handle each asset and designating a technologically-savvy person to handle each digital assets if the user becomes suddenly incapacitated or the like.

4.  WHEN Should I Start Planning for My Digital Assets?

NOW!! Currently, many estate planners do not address or advise clients on these types of assets. However, business plans and personal wills and trusts should provide clear instructions to designated individuals (ie the personal representative) on how to dispose of this type of property. For instance, a will should specifically direct not only who should receive copies of saved digital pictures, but who should be the responsible party to handle this issue on behalf of the deceased.  Our court system is slow to address and define the legal significance of digital assets. Nonetheless, responsible individuals and business owners should keep a running inventory and organization of digital assets. This will not only save heirs time and reduce unnecessary frustration but will also help prevent unwanted consequences, such as losing these types of assets forever, information that could have been useful to contact friends and family, to settle estate debts, and the like.

5.   WHICH Digital Assets Can I Protect? 

The following is a partial list of account-based websites which should be considered in a succession plan:

1.   Google:           In April 2013, Google became one of the first major Internet companies to put control of data after death directly into the hands of its users. Google is permitting usersand/or their estates the ability of when to deletesome or all of the data after 3, 6, 9 or 12  months of inactivity or to pass datafrom the accounts along to one or more other users.

2.   Gmail:             Upon request, Gmail provides instructions for gaining access to the deceased user’s account and, in some instances, Gmail may be able to provide the account content to an authorized representative of the deceased user.

3.   Hotmail:           Upon request, Hotmail will send a copy of any email essages stored on a decedent’s account, along with any existing contact lists, and will then ultimately close that account.

4.   Yahoo:             Yahoo!’s policy is to permanently delete all content and terminate the account upon receipt of a copy of a death certificate.

5.   Facebook:       Upon request, Facebook will memorialize a decedent’s accountto allow friends and  family to write on the decedent’s wall in remembrance. The account may be closed upon       a formal request fromthe decedent’s next of kin or upon a legal request.

 6.   LinkedIn:         LinkedIn will terminate a decedent’s account once receivinga verification of death form,  along with the email address registered to the deceased member’s account. 

7.   Twitter:            Family members may remove a decedent’s Twitter account orsave a backup of the decedent’s public “Tweets”.

8.   YouTube:        A personal representative will be granted access to adecedent’s YouTube account.

9.   PayPal:           PayPal allows only a court-appointed Personal Representative to close a decedent’s account. If there are funds in the PayPal account, a check will be issued in the account-holder's name.

10.  iTunes/Kindle Books:           Apple and Amazon do not permit any transfer or assignment of media licensed through their companies upon death of the account-holder.