Estate Planning for Digital AssetsPosted April 30, 2013 by Articles & Publications, Business Publications in
By Kimberly Jones
Intern, Press, Dozier& Hamelburg, LLC
JD Candidate May 2013
Catholic University of America, Columbus School of Law
Did you know that there are roughly 7 billion people in the world, over 2.4 billion of whom use the internet? Of those 2.4 billion internet users, 1.06 billion use Facebook (44%), 1 billion use YouTube (42%), 500 million use Twitter (21%), and 425 million use Gmail (18%). The common thread among these websites, and many more like them, is that users set up digital identities through them and then proceed to store and share personal property (e.g., photos, videos, messages, documents, etc.) within them. This personal property is often referred to as a "digital asset." It is reasonable to assume that of the billions of internet users, a significant number have digital assets.
Presumably, when you hear "asset," you immediately think about your estate and, subsequently, your plan for managing your assets upon your death. If that is not your first thought, not to worry, that is what your estate planning attorney is for. Unfortunately, unlike the traditional "asset" transferred upon death, digital assets present new barriers and uncertainty to the succession of property.
Barrier #1: Identification of the Digital Asset
Often neither your Personal Representative nor your family members are aware of all of your online accounts. How can your digital accounts and assets within these accounts be handled appropriately if no one knows they exist? Consider creating a Virtual Asset Instruction Letter (VAIL), storing it in a safe place (e.g., a safe deposit box or online storage, such as Secure Safe or Legacy Locker), notifying a trustworthy person of the document's existence and location, and notifying the people you leave behind information regarding accounts and assets they may otherwise miss.
Barrier #2: Ownership of the Digital Asset
You may only bequeath property that you own upon your death. For example, do you "own" the media you have purchased through iTunes? As explained by CNET, when you purchase music on iTunes, you are actually purchasing the right to listen to the music, nothing more. Therefore, the media you purchase on iTunes are not digital assets that can be transferred upon death.
Barrier #3: Access to the Digital Asset
Many digital account providers require users to agree to their terms and conditions prior to use. Generally, the terms and conditions include reference to unauthorized use and privacy. As a result, providers such as Google are often reluctant to grant executors or beneficiaries access to the decedent's digital account even with proof of death and authority. However, as recently as April 2013, Google created an Inactive Account Manager feature that addresses their strict access policy by allowing account holders to establish a plan for their digital assets in their Google account.
If you are concerned about the treatment of your digital assets at the time of your death, raise the issue with your attorney when planning your estate.