Okay, it’s December – and it might even snow soon here in Denver . . .
End of year planning means list-making, right? So here’s a follow up to a post I published on April 30th about passing on in a wired world.
1. Make a list of all your digital “stuff”
2. Tell someone you trust where to find it
3. Don’t forget to update it regularly (new information and changes to existing)
These are the top three things I suggest doing – even if my use of the term “stuff” is vague. Why would I use such a vague term here? Well, there are more than a few types of digital “property,” some of which may look like property but not be property (e.g., a license). This area is relatively new, evolving and fraught with uncertainty. This is why I think the better policy is to include all property on a list and have it “sorted out” later on if need be.
Relating to (2), you could consider someone taking care of your online identity/footprint/stuff as your “digital executor.” I’m thinking historically, back to the many writers who entrusted their unfinished works or compilations to their named “literary executors.” In one case with which I’m familiar, a friend of a decedent was previously instructed to “wipe” the hard drive and all storage devices on the decedent’s computer and smartphone. Not all of us want to live forever digitally or leave a trail for other’s to track. It’s best to decide these things in advance.
You will want to regularly update the list, which could include ownership interests (like a domain name or a bank account for example), licenses or uses (subject to terms of use contracts), access information for accounts, communication and devices (including computers, external storage, cloud and smartphone).
Only a handful of states have enacted legislation relating to digital assets of a decedent and Colorado has not yet done so. What is the state of the law applicable to these matters? Evolving! There is federal legislation regarding the internet, contract law pertaining to terms of use which govern access to most online accounts, and then there is the unsettled area relating to the application of agency law and decedent’s estates (powers of agents under durable powers of attorney and a personal representative of an estate). Suffice it to say there are some very interesting legal scenarios about the nexus of these three sources of law . . . Many estate planning attorneys now regularly ask their clients about digital assets, and some (myself included) have drafted powers of attorney regarding digital access and assets.
There are many nuanced issues relating to digital versions of the familiar world (at least to those of us like me, a “digital immigrant”) – a good example is the book. Let’s say Decedent leaves his library of Mark Twain works (published in 1903) to his son, and the impressive digital collection of the same complete works to his daughter. Whoa! The first bequest is simple and straightforward, but in the bequest to daughter of the digitized versions of the works (which may include versions of audio, video, CD, eBook, etc.) each of the assets would need to be considered according to federal copyright law, any terms of use or terms of service the decedent agreed to when the purchase was made, and whether any kind of intellectual property protection may additionally apply (like under the federal Digital Millenium Copyright Act of 1988).
Okay, what about your Facebook account – maybe you’ve heard there are memorial pages available . . . . This access depends on many factors as well. For example, a coroner investigating a suspected suicide may not be able to access the deceased person’s Facebook account to help with the investigation. Read Jim Lamm’s Oct. 11, 2012 blog post that discusses this very issue in the context of the Stored Wire and Communications Act (part of the Electronic Communications Privacy Act of 1986).
This area of law, like the rest of life – is uncertain. If you want to ensure that everything is accounted for (or erased) – be sure to provide some instructions and make that list of your digital assets.
©Barbara Cashman www.DenverElderLaw.org