Given the breadth of digital assets it’s difficult to know where
our survivors would start, other than that they would likely be overwhelmed.
Further complicating these matters is the uncertainty of existing ownership
and transferability laws that do not adequately address the category of
property known as “digital assets.”
What are Digital Assets?
Digital assets are broadly defined to include any online account and any
file stored on a person’s computer or server. Online accounts include
social networking sites (e.g. Facebook, Twitter, LinkedIn), email accounts
(e.g. Gmail, Hotmail, Yahoo!), online financial or brokerage accounts
and online bank accounts (e.g. E-Trade, Fidelity), photo-sharing sites
(e.g. Snapfish, Flicker), and blogs. This class of digital assets also
includes online resources like eBay, Amazon, Yelp, PayPal, and domain
names and URLs from sites like GoDaddy.com, or avatars on video games
and virtual worlds such as World of Warcraft or Second Life. Digital Assets
is also comprised of files that are stored on your personal computer,
tablet, smartphone, or on a server through an online backup service. Such
digital files can include your digital music, digital photographs, business
documents, address books, personal journals, family recipes, and a whole
host of other types of information that individuals want their heirs to
eventually have. In short, any online account that is protected by a username
and password and contains a user’s economically or sentimentally
valuable content can be classified as a Digital Asset.
Furthermore, Professionals such as computer programmers, graphic or web
designers, photographers, writers, musicians, and other artists may create
“digital data” which becomes stored on a computer or a server
that has substantial intellectual property and monetary value.
Basic Steps to Digital Estate Planning
To ensure that your digital assets are disposed according to your wishes,
it is imperative that you engage in digital estate planning. Here’s
how you can create a Digital Estate Plan in five (5) easy steps:
- Make a complete inventory of all of your digital assets including everything
discussed above so that your Digital Executor will know exactly what assets
you have in the digital world.
- Then assemble a list of all of your usernames and passwords and store it
in a secure-but-accessible place. You can leave it with your attorney;
store it on-line with a secure and shareable archive company such as Everplans;
or simply lock it in a file cabinet or safe. You may even make two difference
lists, one for usernames and a second for passwords, and keep them in
two difference locations. No matter where you decide to store your digital
estate plan, you'll want to be sure that the people who need to know
where the plan is actually know where to find it and how to access it
if it is password protected.
- Third, select a proper fiduciary. When considering who to name as your
Digital Executor, think about the different types of digital assets you
have. Are they mostly personal? Are they mostly financial? Are they mostly
related to a business you own? Or are they all of the above? No matter
the type of digital property you have, you'll want to consider the
nature of the Executor's role to find the right person for the job.
An ideal Digital Executor will be someone who is tech savvy, highly organized,
detail-oriented, and committed to following your wishes as you've
spelled them out in your digital estate plan.
- For each digital account or asset that you have, specify how you'd
like your Digital Executor to handle that particular asset. For example,
you may want some assets to be archived and saved, you may want others
to be deleted or erased, while others should be transferred to particular
family members, friends, or business colleagues. While you may name your
Digital Executor in your will, you may want to keep your directions to
your Digital Executor private. This can be as simple as writing things
down, sealing it in an envelope and marking it “To Be Opened Upon
My Death.” I suggest leaving this envelope along with your Will
in a safe or with your attorney.
- Finally, it is imperative that update your schedule of digital asserts
and their respective user names and passwords regularly.
Laws to handle digital assets are still emerging, but lawmakers and the
courts will always lag behind technology, creating confusion and unnecessary
expense for those trying to sort things out. In the meantime, digital-savvy
individuals must take some basic steps to prepare an inventory of their
digital accounts and assets, assemble a list of passwords, and give their
executors proper information, instructions, and authority so that the
estate administrator will know just what you have, where it is, and how
you want to dispose of it.