By: Brenda A. Mattar, Esq. and Monisha M. Bhayana, University of Pennsylvania Law School, JD 2015
As more and more people carry out everyday business online, digital assets are becoming an increasingly important part of our lives. Books and music are downloaded instead of physically purchased, bank accounts have gone paperless, and photos and emails are shared via the Internet. With many of these services protected behind login IDs and passwords and Terms of Service that providers put in place to insure privacy and prevent identity theft, digital assets often become inaccessible after the death or incapacity of the user.
Digital assets include: email accounts, social media profiles, digital music, video and photo files, online financial accounts, blogs, websites, etc.
Legislation was recently introduced in New York to give the Executor of the estate some additional specific power to control digital assets of the deceased (2013 NY Assembly Bill A823). The proposed Digital Assets bill is still pending. Introduced to the New York Assembly in January 2013, it was referred to the Judiciary with no further action taken so far. Therefore, the law remains largely unsettled. However, through careful planning steps can be taken to prevent the loss of and minimize the difficulty in accessing these valuable assets.
The first step to successful planning is to create a list of all digital assets along with the accompanying login and password information. The list should be kept in a secure location that can be accessed only by the appropriate parties when needed and updated frequently. We do not recommend that you put password information directly into your Last Will and Testament, as that becomes a public document upon death. Think carefully about the accounts you have; you will probably be surprised that you have more than you may have initially thought.
It is also important to provide instructions as to what you would like done with each digital asset and granting the Executor the authority in your Last Will and Testament to manage these accounts as you wish (delete, sell, control, etc.). If you have significant digital assets, you may consider appointing a “Digital Executor” who has the necessary skills to deal with digital assets. You may also wish to authorize your agent under a Power of Attorney to control digital assets in the event of incapacity. Several services are available to aid in the process of creating a secure list of digital assets and accompanying instructions to be sent to specified persons following death or incapacity of the account owner.
Deathswitch sends subscribers periodic prompts for a password and if several prompts go unanswered for a period of time the company deduces the death or incapacity of the owner and sends out pre-written messages to designated individuals. Another company, AssetLock, stores information, such as passwords, that is released to selected recipients after a chosen number of them verify the need to unlock the account. Legacy Locker, a similar service, releases stored information to beneficiaries following a verification process. You may also consider using a password management system such asLastPass.com which creates a single master password to unlock information and encrypts passwords saved on your computer for safety.
Given the uncertainty surrounding the ownership of digital assets after the user’s death and who may have access to them, the best protection you can have is a detailed plan. These assets can have both tremendous financial and sentimental value and are too often overlooked in the process of estate planning. As one’s digital presence continues to grow, it is becoming ever more essential to keep track of digital assets just as you do any other assets, and to provide guidance and direction for their fate in the event of your incapacitation and/or death.