From the Estate Planning, Probate & Trusts Practice.
Most Americans do not have a Will. They haven’t prepared a financial Power of Attorney, and they aren’t even sure what an Advance Directive is. If you are among them, then preparing an estate plan should be at the top of your to-do list.
But even if you have an estate plan in place, it may be missing a crucial element-provisions for your digital assets. These include the electronic data stored on your computer or smart phone, your Internet accounts like LinkedIn and Gmail, and your online pictures and documents.
Managing your digital assets during a period of incapacity or upon your death could be more important than you might think. Some of these assets, like your PayPal or Amazon accounts, may have monetary value. Others, like your email account or personal blog page, could be of great sentimental importance. Even your voicemail account may be valuable if it includes messages from potential customers or expressions of support from loved ones during a final illness.
Without your passwords or lawful consent, your partner, spouse, or trusted friend may find it impossible to manage your digital assets if you become unable to. Your password-protected iPad or smartphone may become useless, your social media sites could be inaccessible, and your blog or website may be left to languish.
Having a valid Will or Power of Attorney is unlikely to be helpful unless it includes specific language addressing digital assets. This area of law is so new that most estate-planning documents are unhelpfully silent on the subject.
What should you do? The first step toward protecting yourself is to conduct a digital inventory. What electronics do you own that require a password? These could include a laptop, smartphone, tablet, DVR/TiVo, and even your home burglar alarm.
What Internet accounts do you maintain that require you to log on? These might include email, Facebook, LinkedIn, and YouTube accounts; mortgage, banking, and investment sites; credit cards, utility companies, and airlines; and e-commerce sites like Amazon, eBay, and Netflix. You may also have your own website or blog.
Make a list of this information and keep it in a safe place. You may want to go the low-tech route and prepare a simple written list, or you could put the information in an electronic file you store on a thumb drive. Whatever form it takes, the list represents the keys to your virtual kingdom and should be prevented from falling into the wrong hands. Consider giving the list to a trusted friend or your attorney for safekeeping. Storing it in a home fire safe or a safe deposit box is also an option.
Higher-tech storage is also available. Free software and Internet-based services like Last Pass, Roboform, 1Password, Dashlane, KeePass, and Keeper will store your passwords electronically. Just be sure that whatever option you choose, the person who will be managing your digital assets can get to it when the need arises.
Next, think about how these assets should be managed if you were to die. For example, you might prefer to have your email account deleted, or it could be essential to have it monitored for messages from customers of your small business. You may want your digital photographs shared with your family, your personal blog taken over by your partner, or your online documents left to a trusted colleague.
It is worth mentioning that some Web-based companies have their own policies that dictate what happens when an account owner dies. For example, Google, Hotmail, and Yahoo! will not grant a deceased account owner’s family access to his account, but they may release the account’s contents under special circumstances. Facebook also denies survivors access but will “memorialize” the account of someone who has died. In a helpful development, Google users can now set up an “Inactive Account Manager” to direct what happens to their online data after they die.
The final step, and one of the most important, is to update your Will and Power of Attorney to include provisions for managing your digital property. At the very least, your Will should grant someone specific powers to handle these assets-either your Personal Representative (executor) or someone who may be more tech-savvy. You may also want to reference your external list of digital assets and logon information. But don’t put this information in the Will itself because it will become public upon your death. An updated Power of Attorney will grant your attorney in fact similar authority in case you become incapacitated.
Whether you are having your first Will prepared or updating an old one to include provisions for digital assets, look for an estate-planning attorney with experience in this area.
This article is intended to provide general information about legal topics and should not be construed as legal advice.