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Winter 2012

Estate Planning Bulletin

Five Estate Planning Tips for Managing Your Digital Assets

By Elizabeth H. Sillin, Esq.

Click here for a printable copy of the bulletin.

“…And I leave my iTunes collection to…”

Can you leave your iTunes collection to someone in your will? How does your executor terminate your Facebook account? Can your family access your digital photo albums after your death? More and more activities, accounts and assets exist online or in other electronic forms, not on paper, and the identification and ownership of a person’s virtual life can be difficult to discern if the person becomes incapacitated or dies. Now is the time to ensure your estate planning takes into account digital and online assets and accounts. Here’s how to begin:

  1. Keep a list of your online accounts, assets, liabilities and passwords.
    Include not only bank accounts, brokerage accounts, and credit card accounts, but also your email, music, photograph, and social media accounts. Your computer and mobile devices may be password-protected as well. Security features impede the ability of hackers to invade your accounts and access your personal information, but also impede the ability of trusted family members to help address personal affairs. While the list of accounts and assets is being assembled, list liabilities that you handle virtually as well, such as paperless credit card accounts and automatic bill-paying features.
  2. Tell a trusted person where you keep your list, and do your best keep it up to date.
  3. Deal with infinitely reproducible electronically stored property.
    When someone dies holding an “original” photo album or record collection, dividing the assets among family members sometimes is difficult. Such assets, traditionally considered “tangible personal property” such as photographs, videos, music, letters and other communications, have a new characteristic when stored on a computer, as they can be shared infinitely, and may not even be considered “tangible” personal property any longer for purposes of disposition in your will. When considering the disposition of such property in your will, you may list those who may or may not have access to it.
  4. Be aware of what you can transfer.
    What about your website, Facebook account, information stored on “the cloud”, such as a photograph collection (Photobucket, Snapfish, Shutterfly, Flickr), and that iTunes collection? This is where you need to read the multipage “user agreement” that you clicked by so quickly when you signed up for a service or account. In the case of photo storage, chances are that while the digital images clearly belong to you and your estate, your account is personal to you and cannot be transferred. In the case of iTunes and other Apple software products, it will depend on whether you have a “license” and the extent of the rights you agreed to in your contract with the company. According to Apple’s user agreements, your account is not transferable, but while alive you have rights to transfer the collection onto other devices such as CDs for use as you see fit. If you have a password-protected account, such as Flickr “Pro” and no one knows your password after your death, the account may lapse, photos can’t be viewed, and the account can’t be renewed. Facebook wants to be notified of the death of a user, and will put the profile into a “memorial state.” If you personally maintain a website, it is registered to you and is transferable. Things that you have published online should be protected by copyright laws, and under those laws, are transferable. However, your personal representative needs to know about such assets to transfer them.
  5. Consider digital afterlife services.
    A compelling story of parents of a Marine killed in Iraq in 2004 who had to sue Yahoo in order to obtain their son’s e-mails was the inspiration for the first digital estate planning and management services company. Legacy Locker, DataInherit, Entrustet, among others, offer automated systems for storing passwords and instructions for your digital assets. Entrustet also offers a “digital property search” service to help survivors build a report of digital assets owned and step-by-step instructions for how to access or delete them. More of such services are likely to appear (and disappear) as these issues become more prevalent.

Federal and state laws about post-mortem rights to digital assets are in their infancy. Expect to see a lot more on this subject in the coming years in an effort to clarify rights upon death.

In the meantime, begin to keep track of your digital life and begin to think about what of that life you would preserve and what you would delete upon death. And make sure that necessary information about your digital assets and liabilities is available to those who will need it!

For more information or assistance, please contact one of our Estate Planning and Administration attorneys:

Kathleen Leitao Bernardo 413-272-6295 kbernardo@bulkley.com
William E. Hart whart@bulkley.com
Elizabeth H. Sillin 413-272-6296 esillin@bulkley.com
Ronald P. Weiss 413-272-6259 rweiss@bulkley.com

This bulletin provides only general information and should not be relied upon as legal advice.