Generally, people grasp the concept that their physical or “tangible” real and personal property contributes to what becomes their estate when they become incapacitated or pass away.

However, a new concept that may be a bit more challenging to understand is that one’s estate can include “digital” property. Digital property is electronic personal data or other assets that are virtually stored and are “intangible” in nature. It almost always holds sentimental value but may also hold high financial value.

Being that digital property is intangible, its location is often unknown after a person dies. Therefore, digital assets are can be an afterthought to estate planning; making even the most carefully crafted estate plans incomplete.

Digital assets take several forms. They range in being anything from social media or financial account profiles and their accompanying passwords to electronic photo albums, archived emails, and other personal records that were scanned into a home computer from a hardcopy. Many mediums in which digital assets are stored are password-protected; making it difficult for family members or executors get access to in order to manage when one passes.

Here is a list of the types of personal property that are encompassed in the meaning of “digital assets”:

  • Computing hardware, such as computers, external hard drives or flash drives, tablets, smartphones, digital music players, e-readers, digital cameras, and other digital devices
  • Any information or data that is stored electronically, whether stored online in a “cloud”, in electronic “apps,” or on a physical device
  • Any online accounts, such as email and communications accounts, social media accounts, financial asset management or banking accounts, shopping accounts, photo and video sharing accounts, video gaming accounts, online storage accounts, and websites and blogs that you may manage
  • Domain names or web sites
  • Intellectual property, including copyrighted materials, trademarks, and any code you may have written and own

With almost nine out of 10 Americans using the Internet, it would take little more than an educated guess to know that the Internet is rapidly becoming a bottomless “storage unit” for our digital lives. Therefore, it is extremely important for you to incorporate a few basic steps into your estate plan to make sure that your desires for your digital property are respected in the same manner as your desires for your other real and personal property.

Here are a few basic steps you can take toward creating a digital estate plan:

  1. TAKE AN INVENTORY.

Make a list of all of your online accounts, including e-mail, financial accounts, social media profiles like Facebook and LinkedIn, utility bill accounts monitored and/or paid online, and anywhere else you conduct business online. Include your username and password for each account.  In addition, include the questions and answers to security questions that may have to be used in case a password expires or is not recognized for a particular account. Also, include passwords to smartphone screen locks and desktop user login information for home computers or laptops.

This list can be developed in an Excel workbook or spreadsheet using headings like these: Account Name, Web Address, User Identification, Password, Account Number and Special Notes/Security Questions and Answers. There are countless online services for storing passwords. If you would like to use an online password storage tool, investigate the service’s features, ease of use, customer support and, most importantly, its security. Example storage tools include Deathswitch, PasswordBox, SecureSafe and Assetlock.

  1. WRITE OUT YOUR WISHES.

Would you like for some digital assets to be destroyed or archived upon your death? Would you like for certain family members or friends to takeover an account or other digital asset with monetary value? If you have revenue-generating assets like shopping reward cards, should any cash, credit, or points earned from those accounts be redeemed?

You may not have given much thought to what should happen to your digital assets when you’re no longer around but answering these types of questions helps those you leave behind save time and even money in handling your estate.

Also, review the User Agreements or Terms of Service policies for your digital asset accounts. Several companies like Facebook, Google, and banking institutions require court orders or formal written requests to be made by verified family members in order for them to receive access to a loved one’s accounts. For example, as of February of 2014, Facebook decedents can have their profile memorialized or removed upon their death but Facebook will preserve the same privacy and visibility settings that the deceased user had specified during lifetime. Many e-mail account terms of service may include clauses that state that any information stored or sent through their server becomes the property of that email provider. Even worse, the policies may be silent on whether an estate’s beneficiary or duly appointed fiduciary may access e-mail archive content at all.

  1. MAKE YOUR INVENTORY SECURE BUT ACCESSIBLE.

There are several entities or persons that you may choose to serve as “gatekeepers” or custodians of your digital estate.

In addition to the online password storage tools mentioned above, you should let a friend or family member know that you have taken a secured inventory of your digital assets. You may even enlist your family attorney or estate planning attorney to keep access information and a description of where your secured inventory is stored.

  1. LEGALIZE YOUR WISHES.

North Carolina may not be on the cutting edge of digital asset estate planning but there are still some measures you can take to legally effectuate your digital asset estate plan.

In North Carolina in May of 2013, Senate Bill 279 was drafted to amend several statutory provisions governing trust, estate, and guardianship matters including digital assets. The draft bill included that, “custodians must provide any executor, personal representative, guardian, or attorney-in-fact with access to any digital accounts operated by the custodian . . . that the [decedent] owns at the time his or her estate is administered.” However, without written explanation, the digital asset provisions of the bill were removed and the remaining provisions governing the other matters were enacted into law in July of 2013.

Regardless of the current legislative climate, you should name at least one person to be your “digital executor.” In most states, a digital executor is not a legally binding title but you can still name someone to fill this role and have your estate executor to allow them to fill this role when the time arises.  You could solicit an estate planning attorney to draft a clause in your will that names this person and/or tells this person where to locate your secured inventory.  A file or document containing actual access to the inventory could be incorporated into your will by reference.

Furthermore, you could ask your attorney to draft or amend your durable power of attorney form to include a clause that allows your attorney-in-fact to access and manage your digital assets in the event you become incapacitated. Lastly, enlist the expertise of your attorney to review current law as it relates to HIPAA (Health Insurance Portability and Accountability Act) and the Stored Communications Act to make sure that there aren’t any other provisions that affect your digital executor’s access to your secured inventory.

Your “digital life” often contains very sentimental and valuable information. By taking these steps toward creating your digital estate plan, you can help ensure that your entire estate plan is not just a musical band but a beautifully orchestrated symphony.

This blog post was authored by Shekei’ra Ward. Shekei’ra is a Dallas, Texas native and a third-year law student at North Carolina Central University School of Law graduating in May of 2015. Post was read, edited and approved by Eric Brei, former Partner at Law++.

Disclaimer

The information on this website is not intended to create an attorney-client relationship. Any information is meant strictly for legal educational purposes and is not intended to be legal advice.

© 2019 Law Plus Plus

Relationship

By contacting an attorney, you are presenting the option for that attorney to accept your case, and that attorney has the option to accept or reject your case. Any information presented to an attorney at Law Plus Plus does not automatically create an attorney client relationship.

Security

We make no warranties as to the security of information presented or submitted through this website.