October 13, 2016
October 13, 2016
There are three kinds of death in this world. There’s heart death, there’s brain death, and there’s being off the network.” – Guy Almes, Director of the Academy for Advanced Telecommunications and Learning Technologies, Texas A&M University.
A few weeks ago, I was at the grocery store with my twenty-nine year old son. After he bought his groceries, I asked him what phone number he used to get the product discounts. He shared that he still uses the house land line number that has been disconnected for many years. Remembering what it was like to have one phone that served an entire family and the memories that had been created over that line made me smile and I was glad that our digital phone number lived on.
Almost all of us have a digital life and digital assets. “Digital Assets” include the files stored on your digital devices, including desktops, laptops, tablets, storage devices, and smartphones. The term “digital assets” also includes emails sent or received, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, and financial accounts.
So what happens to this digital data if you die or who has legal access to your digital data if you become incapacitated?
First, someone has to locate your digital assets. Unlike photo albums or books on your shelves, digital assets can be harder to find. To locate your data, someone will need to check your computer, smart phone and any hard drives or usb drives you may own. Next, that someone should look for your content on social networks like Facebook, Instagram, LinkedIn or information stored in cloud services like Google Drive or iCloud. There are also your financial accounts for which paper statements are no longer received and personal credit data stored on online shopping sites such as Amazon or Zappos.
Once your digital data is located, the next hurdle is to gain access to your data. Someone will need log in credentials and passwords. However, even once “they are in”, they will still need to figure out what can be legally done with the data. While you may have purchased a movie, a book, or music online and downloaded the movie or music to your device, in most cases, you do not actually own the music, books or movies that you have downloaded. Instead, most likely you have purchased a license to listen, watch or read the book for the rest of your life but when you die the license expires.
Most email companies’ terms of service agreements prohibit anyone from accessing an account that is not their own. Currently, Google lets you plan for access to your account at your death with its “inactive account manager” and Facebook lets you decide whether your account should be memorialized after your death or be deleted. However, in August, California passed the California Revised Uniform Fiduciary Access to Digital Assets Act which established guidelines for how and when companies can share an individual’s emails, instant messages, and other digital records following death. The new law approved by the Governor on September 24th, allows an individual to “use an online tool to direct the custodian to disclose or not disclose some or all of the user’s digital assets to a designated recipient”. A user may also provide instructions in his or her will. If the online tool contradicts the individual’s will, then the instructions in the online tool must be followed. The new law also provides that an individual’s written instructions will override the custodian’s (such as a Google or Facebook) terms of service.
So what should you do to help ensure the transition of your digital assets when you die or become incapacitated?
Become more aware of the digital assets that you do have and keep an updated inventory of what you have and where the data is stored.
Consider naming a digital fiduciary in your estate planning documents (will, trust, durable power of attorney) who will provide the necessary information to service providers and gain access to download or delete digital information. The person you have chosen to be the legal representative of your will and trust may not have the skill sets to deal with you digital assets. Your digital executor should be able to understand and manage the technical aspects of archiving or managing digital data. If you make such directions in online tools, make sure the directions are consistent with what has been provided for in your will.
Also, making certain that your digital fiduciary will have access to your computer and your passwords is critical. I am reminded of an estate administration I handled years ago where the widow could not unlock her husband’s computer where all of their financial information was stored. The mental anguish and financial toll on the widow was huge. Passwords have become an essential part of each of our lives. Monthly paper statements of financial accounts or billing statements may no longer be received and the only way to access the data may be through a password. Without your passwords, your attorney in fact under your power of attorney or at your death, your successor trustee may not be able to pay your bills or monitor your credit card accounts. Many of you may use online shopping accounts with stored credit card information for future reference. Delays in closing these accounts after you pass away can result in fraudulent purchases. Passwords are essential in gaining access to these accounts to make changes.
Each of us has their own method of keeping track of passwords. Do you keep a password protected word document stored in the cloud or backed up to a USB drive or are your passwords stored with an electronic password manager that allows you to enter all of your passwords in a single data based and locked with a master password? Both of these methods can work as long as you keep the information up to date and let someone know where your passwords are kept. More recently, a new business model of digital gatekeepers has arisen. For a fee, a digital gatekeeper will store data that you enter and release it upon death in accordance with your instructions.
Leaving a legacy that works best for your loved ones means keeping up with changing times. Further, the components of your current estate plan may not fully complement the many facets of your digital life and you may wish to discuss with your estate planning attorney whether any updates to your current estate plan are needed.