In the digital, virtual and online world we live in, account passwords both protect and frustrate access to valuable intangible assets. As more valuables consist of intangible digital assets and accounts stored online, the troublesome issue of accessing these intangible assets is one of ever growing importance.
Consider what can be done to safeguard future access to digital assets and online accounts by enabling trusted people to access them should we become incapacitated and when we die.
“A digital asset is any item of text or media that has been formatted into a binary source that includes the right to use it,” (van Niekerk, A.J. 2006).
Common examples of digital assets are online bank accounts, email accounts, electronic media, online blogs, online shopping accounts (e.g., PayPal and EBay) and online social media (e.g., Facebook).
Nowadays, with many people spending so much of their time and efforts online, they are creating important digital assets and accounts; assets that their families will want to access after their death. We have all heard about the families of deceased veterans who wanted to access a deceased soldier”s private email accounts for sentimental and family reasons. These families were forced to sue internet giants like Facebook, Google, and Yahoo! in order to overcome obstacles regarding access by others when an account owner dies.
So why are such companies unwilling to allow families and even executors access to a decedent”s account? The reason is the 1986 federal Stored Communications Act. It protects an account owner”s privacy (above all else) and makes it a crime for third parties, such as Facebook or Google, to give access to anyone else, without authorization from the account holder, to a portal through which electronic communication is provided.
So what can we do? First, we can inventory all of our online accounts, passwords and encryption protocols so that our agents, and whoever administers our estate, have password access.
There are even companies that provided “digital password vaults” where all of one”s account information can be stored in one place. Much grief and trouble can be avoided simply by having inventoried our accounts and passwords and making that inventory available to necessary parties.
Naturally, there are some digital assets that are highly personal, perhaps including one”s Facebook account or an online blog that one may not wish to have accessed by anyone else after death. With respect to these assets, one may decide not to share the account password and enquire with the online company regarding destruction of the contents after death.
Second, subject to limitations imposed by end user license agreements of the online company that has custody of the digital asset, we can assign ownership to some of our digital assets to the trustee of our living trust and/or include special provisions within our powers of attorney and our wills that give the agent and executor power to access these digital assets.
We can also be selective as to which online companies we use. Read each company”s End User License Agreement (EULA) and Terms of Use. The agreements of Google, Facebook and Yahoo! vary significantly from each other. These license agreements control the terms of release of the contents of an account, access to an account and transfer of an account through probate.
Digital assets and accounts comprise our digital estate. The intangible digital estate is subject to different rules than those that control our traditional tangible assets. Different problems and different safeguards are required to protect our interests and loved ones.
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar-certified specialist in estate planning, probate and trust law. His office is at 870 S. Main St. in Lakeport. He can be reached by email at dennis@dennisfordhamlaw.com or call 263-3235.
