Have you thought about the size of your digital footprint? Do you use email, Facebook or Twitter, or do you store your photos in the cloud? Do you read e-books or have all of your music on your computer? If you do, have you ever wondered what happens to those accounts and assets after you die? Given the popularity of the use of email, social media (including Facebook, Twitter, Instagram, blogs), websites, cloud storage, phones, music and e-books, does your current estate plan properly transfer or give authority for someone to access your digital assets after you pass away?
For many people, their current wills and estate plans do not begin to address the issue of digital assets. If your will is silent on the matter, then, according to federal law, the terms of service contained in the user agreements will apply. These terms of service usually prohibit third-party access to digital assets; meaning that the person who created the account is the only person allowed to access those digital assets. This becomes problematic after a person dies.
As more people create and use digital assets, it is more important than ever to have a consent clause in your will granting authority to your personal representative to access your digital assets after you have passed away. Some sites, like Facebook, have a “legacy contact” that you can designate while alive, so that when you pass away, he or she can access your account to memorialize you, add information about your funeral services and prevent others who may know your password from accessing your account. With respect to music and e-books, the user agreements define their services as a “license for personal use” which means you cannot transfer the content to another user, even after your death. However, for most people, the best current advice is to give your password to the person you wish to inherit your music and e-books in the hope that access will not be denied.
For the average person, their digital assets may not be of great monetary value, but they most likely contain sentimental items, especially pictures that will be cherished if passed along to loved ones. To that end, it is vital to leave a document containing an itemization of your digital assets with accompanying passwords and, in your will, grant your personal representative the authority to access and distribute, to the extent allowed, your digital assets.
Mike Stankavish is a lawyer and owner of North Shore Elder Law and Estate Planning. He can be reached through www.nselep.com