A good estate plan provides for the orderly transfer of property and the finalization of one’s wishes upon death. Estate planning tools, such as Wills, Trusts, gifts, and Powers of Attorney handle physical assets in a way that maximizes benefits and minimizes hassle for beneficiaries. However, as technology becomes an increasingly integral part of everyday life, “digital assets” such as email, social networking and online banking accounts also deserve consideration in modern estate plans.
Failure to make plans for online accounts or to leave behind a comprehensive list of passwords can cause unexpected hassle. Online banking accounts need to be secured and closed. Family members may want access to accounts in order to download and save any photos, writings or other digital works for posterity. In addition, family members may be able to take advantage of digital assets capable of generating revenue by having their Creative Commons licenses changed so beneficiaries can receive compensation. Most terms of use expressly forbid the use of an account by anyone other than the account holder, and attempting to address these issues without proper instructions can be difficult.
Since digital asset planning is new, the law is not always clear on the rights of online account holders and their family members. The question, which few existing laws address, is, who owns the content? And who has the right to access and close the accounts? Service providers like Facebook, Google and Twitter each reserve the right to close accounts at any time, and they are all wary of providing family members access to accounts.
Facebook, for example, expressly prohibits giving user information to family members, saying only that they will “consider” requests from close family members to close the account. Gmail, Google’s email service, will open an account to family members, but only after a copy of a death certificate, a Power of Attorney document and an e-mail sent from the deceased’s account are provided.
Estate planning attorneys and technology developers are beginning to look at digital assets like any other assets that can be bequeathed to a beneficiary after death. Companies like Legacy Locker offer the ability to safely store things like PC logins, domains and passwords to online accounts. Once the information is stored, a “beneficiary” is designated for each password and account. Beneficiaries then receive the information that has been bequeathed to them with instructions as to how it should be used after the account holder’s death.
It is increasingly difficult to make it through life without leaving an online trail of emails, accounts and passwords. These assets need to be addressed in an estate plan in order to protect your privacy and the privacy of your family, friends and business associates. Gathering information about accounts and passwords and indicating what should be done with them upon your death will ease the burden on family members and protect important online assets.
Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.
