Most of us have a digital life, and for many of us that life is significant--either economically or emotionally. Have you ever considered what happens to your digital life if you die or are otherwise unable to control your digital world? Probably not, or at least no more than you considered the agreement when you opened your digital accounts. Remember that—”I accept”—Click—you signed the contract that governs that digital account.
What is your digital life? It is your iphone, ipad, personal computer, business computer, personal email, business email, Blackberry, Facebook page, Twitter account, Linkedin account, Nook, Kindle, ipod, PayPal account, etc. And a lot of other things you probably don’t remember and others that haven’t been created yet. It also might be how you link to your bank accounts, investment accounts, beneficiary designation providers and others. Suffice it to say, with each passing year more of your life goes digital and in increasingly complex ways. A lot of your life is lived in the clouds these days.
What happens to your digital life when you die? For now, the law is undeveloped. Most of the estates and property laws go back hundreds of years, long before digital life, and yet those old legal concepts are now trying to deal with the digital today. A few examples:.
First, your will probably leaves your tangible personal property to someone—perhaps a spouse. That currently means your spouse gets your computer. But your computer houses many digital items, including perhaps family photographs. It also is probably the direct connection for your personal email. Your email is the access point to many of your other accounts. Even accounts that are passworded often cooperate with your email to provide or change passwords. Suddenly, your spouse with your computer may have practically unfettered access to a lot of your digital life. That may be fine, BUT it may not be. What if there are items in your digital world that you don’t want your spouse accessing—we will leave that to your imagination. AND, maybe your spouse doesn’t get your computer, but only one of your three children does.
Additionally, your executor needs access to your digital accounts to know what you have and how to properly manage those accounts as part of your estate administration. What if your executor is not your spouse who has the computer? Or what if your executor is not digitally literate? Suddenly your digital life, some of which is necessary to preserve your estate, may be out of reach.
And what about email—your business partners may need those emails, but depending on the terms of service when you did that “Click” to set up the account, your email may be deleted at your death or rendered inaccessible.
The point, of course, is you need to estate plan for your digital assets. As part of your estate planning, you should think about who should receive your digital assets and what powers they should have concerning them. Also your executor needs the power to deal with your digital beyond— at least as well as the executor can have power with existing law. You also need to have someone competent to deal with your digital assets. For example, you could give a digital “executor” the legal ability to deal with your digital assets (yet knowing your original digital asset or account contracts may limit the powers).
To deal efficiently with your digital beyond you should create an inventory of digital assets, their access points, their functions and importantly their passwords. You need to keep this inventory up-to-date. There are even services available online now that will help fill this role for you.
Also, while you are alive, you should have an agent, under a power of attorney, able to access your digital world and manipulate your digital assets as needed. A durable power of attorney, including digital powers, might help there. The inventory of assets could be invaluable.
Your digital assets will survive you. You need to keep your digital life organized to help your family deal with those assets once you cannot do so. You also need to provide legal power to handle appropriately those assets to your executor, agents, and even heirs.
Finally, when you open a digital account, you need to think about the terms of those service agreements to determine if you really want to click “Accept,” or at least how to handle them if you do “Accept”.