Save the username! Save the passwords – or not?
Life (disability) and estate planning can be complicated, but even more so if you are living in the wired world of the internet. Where most people have had to look through filings cabinets or particular notebooks and such for estate information, information about virtual assets – both digital and online – can be invisible. If you do business online, are a member of an online community, or have intellectual property that you care about, you may want to identify those virtual assets and how to access them (if you want to grant access). This is an important current development in the world of estate planning as more people use the internet and access it in broader and deeper ways. How your survivors can or cannot access your online or digital information can get tricky.
I liked a 2/9/12 post by Jim Lamm, a Minnesota estate planning attorney who regularly blogs about this type of estate planning.
It’s not just the usernames, passwords and the like for what we would traditionally think of as “assets” because there are other online activities that our loved ones may want to access. This article from New Zealand focuses on social media “assets” like Facebook, etc. and here’s another from an American company.
But many of us, myself included, have online accounts that may only be “visible” via the internet. What about those assets? Here’s a useful article from July 2011 about digital assets that includes not only social media but other intellectual property (videos, documents, websites, blogs, etc.)
What are some of the online and digital assets that I’m talking about here?
- Access to and use of specified computer or digital device
- Identification of Email Accounts (addresses and passwords);
- Social Media/Networking Accounts (Facebook, LinkedIn, etc.);
- Instant Messaging accounts, text messages (devices on which messages are found);
- Online bank and brokerage accounts;
- E-statements of various types including: credit card statements and payments, bill payments, retail activities;
- File storage (external hard drives, cloud storage, any SaaS, etc.)
- Music & Videos Storage Sites (Flickr, Musiclockers);
- Websites and domain names owned (hosting information) including blogs
- Online Gaming Accounts (WoW, EVE, etc.) (I KNOW there are people of all ages gaming online).
Many of us are very concerned about identity theft and so we keep usernames, passwords and the like very secret. If you don’t leave a record somewhere that your personal representative for your estate can find, locating those assets and gaining access to them may be very difficult indeed.
If you become incapacitated and have executed a durable power of attorney, that power of attorney may allow your agent to handle your virtual assets. In the event of your death, a will can specify how those assets are to be disposed of. Colorado law does not currently specifically address the disposition of digital assets.
Several states have laws that address them, and they are all recent statutes. In the Nebraska legislature is a bill, which if it becomes law, would make Nebraska the third state to give estate representatives (in Colorado they are known as “personal representatives”) the power to handle social media accounts after a Nebraska resident dies. The bill is modeled on an Oklahoma law, and Idaho law provides for digital assets in the estate administration context. One commentator, Professor Gerry Beyer, recommends that estate planners provide counsel to clients about these assets and also that more state legislatures need to act to update laws covering these assets in the estate administration context.
Many people who have bank accounts and accounts at other financial institutions or other types of digital assets will want to be sure and provide information so that their assets can be found and transferred according to their wishes (according to the beneficiary designation, TOD, POD or other direction if they have a will). If you have “gone paperless” you will want to make sure that your loved ones know where to look and what to look for. Other people may want to be much more circumspect about whether anyone should have access to their computer, hard drives or online activities. Each person will most likely want to decide for him or herself.
As the number of people online increases, and the type of tasks we perform online become more and more complex and broad, a larger number of people are at greater risk of encountering the “no man’s land” of digital asset limbo. Have you made any arrangements for access to you online or digital assets?