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Planning for Digital Assets

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If you’re like me, you may be wondering what happens to your Facebook page, emails, iTunes collection and other ‘digital assets’ when you pass away. As more and more of our lives unfold online, it’s logical to examine and possibly even plan ahead for our digital assets and web presence as we contemplate our estate plan.

If you’re like the majority of Americans, you have some digital assets. 81% of adult Americans use the internet for one purpose or another. 88% of American adults who use the internet send or receive email messages and 67% use social networking.[i] To me, these statistics are staggering. I still remember the world pre-internet. I’m not sure any generation after my own shares this recollection.

As an elder law and estate planning attorney, this naturally leads me to contemplate the implications of an ever virtual lifestyle for my clients. I wonder – what will happen to these assets when someone passes away? What are the issues that we must confront when creating an estate plan? What options are available to my clients?

Digital assets can actually be worth money. Take, for example, a web domain name or a book written using word processing that is stored on a computer hard drive. Sale of the web name or book may never occur if a personal representative cannot legally access or control the assets. Still, only a handful of states have laws specifically addressing the issue of what type of control and access an executor has over a decedent’s digital assets. Even less states have rules regarding what the agent of an incapacitated person (such as an agent under a power of attorney) may do in this capacity.

Not all digital assets have monetary value. This does not mean that the assets have no value, however. Sentimental value can be a major motivating factor to keep tangible property and in the future it may be an impetus to plan ahead for digital assets.

Gerry W. Beyer, a law professor at the Texas Tech University School of Law wrote a particularly interesting and pertinent passage about the sentimental value of digital assets in his article entitled Estate Planning in the Digital Age. Professor Beyer wrote: “historically, people kept special pictures, letters, and journals in shoeboxes or albums for future heirs. Today, this material is stored on computers or online and is often never printed. Personal blogs and Twitter feeds have replaced physical diaries and e-mails have replaced letters. Without alerting family members that these assets exist, and without telling them how to get access to them, the story of the life of the deceased may be lost forever.[ii]

The state of the law, at this point in time, is that end-user use or terms and conditions of service agreements control the fiduciary’s rights. In plain English, this means that when you sign up for a service on the internet you generally have to check a box or click a button saying you agree to the terms and conditions of the service and those agreements, whether you have read them or not, are usually enforceable. Depending on the service provider in question, these agreements may explain the rights of an executor of your estate or agent under a Power of Attorney for accessing your account.

Unsurprisingly, Google has been at the forefront in providing options for users to indicate what their wishes are for their account(s) at their death. In 2013, Google announced a feature called “Inactive Account Manager[iii]” which allows users to designate a contact they wish to receive account information when the user’s account is inactive for a specified period of time. This is beneficial because it allows the user to have the choice as to who can have access to their account when they become incapacitated or die, rather than Google later choosing who may access the account based on a terms of service agreement that the user likely clicked through quickly and/or never read.

There are currently drafters working on a model law on this issue. Model laws are documents drafted by committees interested in the issue who then circulate their work to other interested parties. Legislators in the various states and the United States Congress can then use the model drafts as a starting point when they are interested in sponsoring a law for their constituents. At this time, there is no law in Pennsylvania regarding the power of fiduciaries dealing with digital assets, and there is no bill proposing one on the horizon.

Because of the uncertainty in this arena, individuals concerned about their digital assets should keep updated on the terms and conditions of the various services they use on the internet. Since most services have their own agreements and they are likely to be different from each other, it is important to read these policies whenever you are concerned about how your digital assets will be controlled if you die or become incapacitated. If you’re like me, you may just be interested to find out what they say.

[ii] Gerry W. Beyer, Estate Planning in the Digital Age 4 (2013).