15 years ago, people didn’t worry about digital assets in their estate plans. Today, however, there is a new facet to estate planning due to the increase of our online presence. Now you must consider the following: “Who can access my Facebook, Twitter and Instagram accounts when I die? Who receives my family photos on my Cloud account? Can I bequeath my digital music from iTunes?” These assets can have significant sentimental and monetary value. Thus, it is important to think about these questions and plan for their transfer.
Digital Assets Defined
Some of the most recognizable types of digital property would be your Facebook account, online bank accounts/investments or your dating profile (yes, even Tinder). But digital assets also include emails, digital photographs, music, e-books and text messages.
The world of technology is evolving fast and the law isn’t keeping up with the pace. Legislation, however, was recently proposed in The Fiduciary Access to Digital Assets Act. The Act would give fiduciaries complete access to a deceased person’s digital assets. Nevertheless, The Act is not the law of the land and the majority of states have not adopted it, including Ohio.
Additionally, websites have their own terms that govern how your digital assets are handled when you die. Let’s use Facebook as an example. Facebook gives the deceased’s heirs two options: (i) “memorializing” the account; or (ii) removing it altogether. If the account is memorialized, no one can log into the account or modify it in any way (including adding or removing friends or deleting any content posted by the deceased). Friends, however, can still share memories on the memorialized timeline depending on the deceased’s privacy settings.
If instead the heirs choose to delete the account, the family member or executor must submit a request for removal. This option completely removes the profile and all associated content from Facebook. If this option is chosen, Facebook will require the family member/executor to verify their relationship to the deceased person (such as a death certificate).
Step 1: Explicitly Address Digital Assets. Ohio does not have a definitive law on what happens to digital assets after death so it becomes imperative to specifically address “digital assets” in your estate plan. A specific clause in your Will allows your executor full access to your digital assets. Without instructions, the presumption is that the deceased wanted to maintain privacy and keep the information protected.
Step 2: Identify Your Digital Assets. Secondly, your family members or fiduciaries will need to identify and distribute your digital assets just like all other assets. As such, you should create a list of all your online accounts and passwords. The list should be a hard copy and kept in your home where your family members/fiduciaries can find it. Do not include the list in your Will because it will then become public record.
Step 3: Define Digital Assets. Thirdly, define exactly what “digital assets” means to you. That is, make clear which assets you want destroyed and which ones are to be passed on.
To illustrate, in 2012, a teenage girl named Alison Atkins passed away from colon disease. Alison’s family turned to her online accounts for comfort. To access her accounts, they had to circumvent Alison’s passwords by using her computer’s automatic log-in function. However, Alison’s wishes regarding her online life after her death were unknown. That said, no one knows how Alison would have felt about her family accessing her accounts which contained conflicting characterizations of her life including happy family pictures but also dark private journals. So ask yourself: “Do I really want anyone reading my personal information stored on my computer?”
If your digital assets are important to you, please contact Peter Sayegh or other AlerStallings attorney to customize your digital estate plan.