Have you planned for your digital assets? How can you when you are not even sure what they are or if you have any? Digital assets is a relatively new term used to describe a long list of items related to cyberspace and computing and includes such things as computer hard drives, data storage devices, electronically stored information, user accounts and domain names. Planning for your digital assets starts with the naming of a fiduciary (i.e., executor or trustee) to access your digital assets.
Planning for your digital assets also helps your family preserve assets that may have significant monetary value; domain names have been sold for hundreds of thousands of dollars, personal websites and blogs may have value, computer gamers can accumulate funds within role playing games that have value in the real world and an unpublished manuscript may be stored on a hard drive or a memory stick. Other digital assets like email accounts and photo storage accounts may not have monetary value, but the information stored within these accounts could be valuable to your surviving family members.
Can someone step into your shoes if you have not planned for your digital assets and are unable to access your accounts? The reasonable answer is if that person can locate your passwords he or she could access your accounts just as you could. The legal answer differs; under the Electronic Communications Privacy Act of 1986, the Computer Fraud and Abuse Act of 1986 and other applicable federal and state data privacy laws, the answer is most likely no. Such access may also violate the account provider’s terms of service or could be interpreted as identity theft. If your provider learns you are no longer living, they most likely will immediately restrict access to your account to avoid facing possible sanctions.
Woodman & Eaton recently began incorporating specific language into estate planning documents that is designed to allow fiduciaries access to digital assets. As the laws mentioned above have yet to be fully interpreted and are still evolving, we are continuously refining our language and documents. We are also working with our clients to store and secure access codes, passwords, pins and secret information such as first car or mother’s maiden name. Many of these items may change regularly and it is important to update records on a regular basis. After all, no one wants their personal or business information lost in cyberspace.
