Whether you're aware or not, virtually every American has an expansive range of digital assets so ingrained in our daily life we don't consider the complications that could arise upon our deaths. In addition to considering what will happen to our homes, cars, bank accounts, retirement accounts, and other "traditional assets," we must now also address what happens to our "digital assets."
What are Digital Assets?Digital assets include your electronic communications and digital property. On a day-to-day basis, these would include your:
- Facebook account
- Other social networking accounts
- Digital photos
- Audio and video files
- Electronic documents like stored tax returns
- Online investment accounts
- Online shopping accounts
- Web pages
While you are the rightful owner of your blogs and family videos, you only own a license to use most audio files, movies, and TV shows. For those files, the license expires upon your death and is not transferable to your loved ones.
For everything else, you need a plan. You likely want your friends and family to have access to your photos or other memories, and accessing your online information would greatly help the person administering your estate.
What Happens If I Don't Plan for My Digital Assets?Generally speaking, an agent under a power of attorney or a personal representative who administers an estate is limited to accessing a list, or catalog, of your digital assets, but could not see the content of those assets. New laws for digital assets enacted in both Washington (effective June 1, 2016) and Oregon (effective January 1, 2017) offer more privacy protection for the content of your digital assets, which may not be your intent.
Think of digital assets like traditional letters. The envelope contains basic information about you, the recipient, and the date (a catalog), that anyone looking at the envelope can see. The letter itself contains the important, and more private, information (the content). Under the new laws, your agent cannot read your letters; she will only see the information on the envelopes.
Accessing a catalog of your digital assets can be helpful. If you received an email from a credit union every month, you likely have an account at that credit union. However, your agent would not know whether you have a loan or savings account, its value, or the account number. Further, obtaining a list of thousands of media files stored on your phone, but not being able to see the pictures or videos, may offer little help or comfort to your loved ones.
Can I Make a List of My Passwords Instead?Yes, but be careful. Having a centralized list of your accounts and passwords could expose you to financial abuse or identity theft. Also, impersonating a deceased person, even with good intentions, could violate state and federal fraud laws or the terms of service for that account.
While the chances are slim that your loved ones would face criminal charges for hacking into your account, it is still illegal. Further, if your representative logs in to your account without proper authority, she will still not be able to legally conduct business for your estate. Finally, on a practical level, a list is not very helpful if your passwords have changed.
How Do I Allow People I Trust to Access my Digital Assets Upon My Death?The most comprehensive solution is to incorporate planning for digital assets into your overall estate plan. Every person should have a power of attorney and a will (or revocable living trust) that authorizes a trusted person to access a catalog of digital assets and designate whether - and who - can access the content of those assets.
Some accounts also have tools to authorize a specific person to access your account if you are inactive or deceased. For instance, Gmail account users can designate an "Inactive Account Manager" who has limited access to your account or can delete it entirely. Facebook allows you to choose between designating a “Legacy Contact” who can memorialize your account or have it deleted upon your death. Instagram will also memorialize your account, but does not give access to anyone else, although they will remove the account at the request of an immediate family member. Others, like Yahoo, simply close your account when notified of your death. The tools vary widely from site to site and often don't include the options you may desire.
Including your wishes and authorizing a trusted person to access your digital assets in your overall estate plan is the best method for ensuring your friends and family can properly handle your affairs and honor your digital life.
We Can HelpCall Gevurtz Menashe today if you want more information about estate planning for your digital assets. Our experienced estate planning and probate attorneys can address your privacy concerns while making sure your loved ones have the tools they need.
To schedule a consultation, call our Portland offices at (503) 227-1515, our Vancouver offices at (360) 823-0410, or contact us online anytime.