What will happen to your Facebook, Snapchat and Instagram accounts when you die? Who will have access to your online business website or professional blog?
If you suffer from a serious illness or temporary incapacity, what will happen to all the domain names you have registered or use? If your incapacity is permanent, who has the legal right to access your personal and business documents on Google Drive or Dropbox?
After your death, incapacity or disability, who can access and control all of your pictures and videos on Shutterfly, Periscope, and Youtube? Will anyone need to access, for any reason, your PayPal and Stripe accounts?
Don’t forget about your smartphones, tablets, and laptops? If the FBI finds it challenging to access the iPhone of terrorists, do you think your family or business partner will be able to gain access to information they stored away on your digital devices?
Valuable Assets Most People Don’t Think About
All of the above are important and potentially valuable digital assets that should be taken into consideration in both estate and business succession planning. According to McAfee, the average Internet user has over $37,000 in unprotected digital assets. As we move from building digital footprints to digital billboards, I think this number is going to continue growing at an exponential rate.
The fact of the matter is that 60% of Americans do not have a Will or Trust. For those that do, few have thought about including their personal and professional digital assets into their estate or business succession plans.
Making sure your digital assets are part of your estate, and business succession plans is necessary for two reasons:
- It will help minimize and possibly even eliminate probate, avoid probate fees and estate death taxes.
- It will help protect valuable business assets and prevent the chance of your business being disrupted by claims and lawsuits involving domains, websites, and challenges regarding intellectual property rights.
From both a personal and business perspective, being able to control how your digital assets should be handled after death (maintained, moved and even deleted) avoids misunderstands and really will help your legal heirs settle your affairs. Planning ahead and giving access to all your digital assets including online merchant account and bill payment services will allow executors, trustees, and family members to locate and settle these accounts. In the business world, it may allow your business to move forward and thrive rather than come to a screeching halt and disappear.
Current Laws
The laws are different in each state, and the legislatures are scrambling to create new laws that help protect your digital assets. Absent you expressly describing what and how you would like each of your digital assets to be handled after your death, in most cases the Terms of Service and Privacy Policy agreements of each digital account will control what happens. In almost all agreements that I’ve looked at, these platforms only allow for the eventual closing of accounts. Most do not allow surviving family members or business partners access to the content of the digital accounts or to take over the accounts (think Facebook business page or Google Drive/Docs, calendar and email).
Two digital service companies who have taken the first step to allow users to plan for death and incapacity are Facebook and Google. Facebook has what is called the Legacy Contact Option and Google offers the Inactive Account Manager. Both are a step in the right direction but are inadequate in and of themselves for proper estate and business succession planning.
Online Entrepreneurs
Many of my online clients and friends are authors, content producers, speakers, and consultants. Whether they realize it or not, they probably hold important copyrights to their content and material. All of these rights, including licenses and royalties, can be protected and transferred to loved ones upon incapacity or death through proper planning. If a person fails to take the necessary steps to include these digital assets into his or her estate or business succession plans, their rights may evaporate into digital thin air.
Probate laws, lawyers, and consumers in most states are behind the times when it comes to considering the digital afterlives of others. For example, California legislators are still working on drafting a new law referred to as The Privacy Expectation Afterlife and Choices Act. Although it’s complicated, in essence, this new law will prohibit anyone from having access to your digital accounts and information without the planning and legally given estate and business succession permission I’m referencing.
The key to successful estate and business succession planning is bringing these concerns to the attention of your estate planning professional before anything happens. Planning ahead and creating proper estate and business succession plans and documents will help make sure your long-term goals are complete while also helping everyone you care about to quickly and easily move forward after you’re gone.
How To Start The Process
Inventory and make a written list of all your digital assets. Include usernames and passwords. Also share a short description as to the purpose and use of each asset. Describe exactly what someone will need to know about the particular platform or account.
Store this information in a safe place. Your lawyer can store this information for you. The attorney-client confidentiality privilege will help keep things safe, secure and private. The important take-a-way is to make this detailed information easily available to those people who you trust when incapacity or death happens.
Next, have your estate planning and business succession lawyer prepare and update your Will, Trust, Powers of Attorney and all business succession documents. If you don’t have a plan, get one set up right away!
When creating the plan, do not include a list of digital assets with usernames and passwords in the documents themselves. Many of these documents may become part of a public record, or fall into the hands of various third parties, and so for obvious reasons, you will want to keep access to your digital assets confidential.
Instead, I recommend that you have your estate planning lawyer reference the digital asset list (ex: “incorporated herein is the ‘Digital Asset List’ stored in the decedent’s safety deposit box…”) or something along those lines. Make it clear in the planning documents that there is a confidential list that only your executor, trustee or lawyer has access to.
Conclusion
Make an appointment to see your estate and business succession planner to talk about these issues. You have my permission to bring a copy of this post and share it with him or her.
Start thinking of all the components of your digital landscape as valuable asset and include them in your estate and business succession plans. If you need help finding a good lawyer to help you with doing all of the above, please feel free to use this type of approach.
For those of you who have lost a loved one and are dealing with one or more of these very issues right now, you may want to consider retaining a lawyer or hiring a company like EstatePass.com to help you through part of the process.
And for those of you who have the opportunity to plan ahead, keep in mind that completing the above allows people who you care about to easily access, handle, manage and distribute your digital assets upon your incapacity and death. Taking the time to update your existing documents with these action items will be appreciated by your heirs. Planning ahead may also help insure the well-being and financial success of your surviving family members and business associates.
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Mitch Jackson, Esq. 
aka “The Streaming.Lawyer”
