WHAT HAPPENS TO YOUR ONLINE ASSETS WHEN YOU GO OFFLINE?

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1 WHAT HAPPENS TO YOUR ONLINE ASSETS WHEN YOU GO OFFLINE? Wayne County Foundation October 25, Keith P. Huffman 1 Prepared By: Keith P. Huffman Christopher L. Nusbaum ATTORNEYS David C. Dale Keith P. Huffman Timothy K. Babcock Christopher L. Nusbaum Jeslynn C. Ruble Michael J. Huffman 2 1

2 YES I AGREE TO THE TERMS AND CONDITIONS OF THIS PRESENTATION (LIKE YOU HAD A CHOICE ) NO, I WANT TO READ THE FINE PRINT BECAUSE I DON T SLEEP WELL AND I AM SLIGHTLY PARANOID BECAUSE EVERYONE ONLINE IS AGAINST ME, BUT I DON T KNOW WHY, REALLY I AM A NICE GUY Digital Estate Planning for the Digital Dinosaur 3 WHAT IS A DIGITAL ASSET? REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT Indiana Code et seq., effective July 1, 2016 Sec. 10. As used in this article, "digital asset" means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. 4 2

3 DIGITAL ASSETS EVERYWHERE Personal Social Media Financial Accounts Bit Coins Business Accounts Domain Names Loyalty Program Benefits Other 5 WHAT DOES YOUR POWER OF ATTORNEY SAY ABOUT DIGITAL ASSETS? Ours Says: electronic records, reports, and statements (including authority to (i) gain access to and exercise control over my digital assets, (ii) access my user accounts with online service providers, (iii) access, retrieve, copy, or store electronic communications sent or received by me, and (iv) perform any acts in connection with the use of electronic records pertaining to my affairs); 6 3

4 WHY IS IT IMPORTANT TO PLAN? Its just a bunch of ones and zeroes; there's no value, right? GEORGE DIES AT AGE 30 (from a freak cheap wedding invitation, toxic glue fiasco. Susan, his fiancé, is devastated.) He is not married and has no children He does everything on-line: Pays house payment $2,500 per month Pays student loans $2,000 per month Pays all Utilities on-line $500 per month Pays Health Insurance on-line $600 per month Each are automatically withdrawn from his account each cycle Assets of $50,000 at death Each month the $5,600 in bills are paid each month and the Personal Representative has no idea they even exist Personal Representative is responsible for deficiency if Creditors are not paid according to Indiana Law, IC et seq. If you represent the Personal Representative, what is you ethical standard in making sure they are aware of these issues? 8 4

5 THE PERSONAL REPRESENTATIVES DUTIES HISTORICALLY Then Gather Information Home Lock box Business Mail Bank Records NOW ENTER THE CLOUD 9 SUGGESTIONS FOR A PERSONAL REPRESENTATIVE Get Help! (ask a digital native for directions) Try to get all files, accounts, social media accounts. Notify On-line world of death Change all passwords Be slow to delete files, if at all Locate all financial information Secure all credit cards Get a good external USB Hard Drive to store data 10 5

6 INDIANA LAW PROVIDES FOR PERSONAL REPRESENTATIVES: IC Electronically stored documents of deceased Sec IC and IC apply to the right of a personal representative who is acting on behalf of the estate of a deceased person to access: (1) the content of an electronic communication (as defined in IC ); (2) catalogue of electronic communications (as defined in IC ); or (3) any other digital asset (as defined in IC ); of the deceased person. 11 DIGITAL ESTATE PLANNING VIOLATES THE BASIC RULES FOR PROTECTING DIGITAL INFORMATION! Naming File: My Important Financial Information and All Passwords is not recommended. However, the better you are at protecting your online information the harder it will be for your Personal Representative. 12 6

7 IT MAKES THINGS EASIER Planning makes life easier on everyone, especially the Personal Representative Prevent identity theft after death Prevent losses to your estate Preserve your story and legacy 13 DRAFTING WILLS What section of the will do digital assets pass under? Personal property? Intangible property? Intellectual property? License to use? 14 7

8 YOUR GOOGLE DIGITAL WILL Inactive Account Manager Google Drive Gmail YouTube Social Network Photos 3, 6, 9, 12 months You decide what happens to your data. Add up to 10 contacts to notify ?hl=en 15 PLANNING SUGGESTION Inventory Your Digital Assets We have attached a Digital Estate Form created by Professor Gerry Beyer used with permission Update Your Inventory Quarterly Consider an Online Information Storage Service 16 8

9 AUTHORIZE ACCESS TO YOUR DIGITAL ASSETS You can now use a Small Estate Affidavit to access digital assets after death Indiana Code (g) 17 DEALING WITH LEGAL ZOOM What is the Unauthorized Practice of Law by a Computer? Yes, the law allows you to prepare your own will. The law also allows you to perform surgery on yourself. However, neither is recommended. 18 9

10 CONSIDER A DIGITAL TRUST Easier to amend than a will Trustee can access information without violating the license agreement license agreements terminate at death trustees do not die. All On-line accounts Keith Huffman, Trustee 19 WHAT HAPPENS TO MY FAVORITE ACCOUNT WHEN I DIE? 20 10

11 VAIL Virtual Asset Instruction Letter Put it in your safe deposit box. Name a Digital Executor 21 LEGACY PLANNING Family Business Family Philanthropy Minor Children 22 11

12 YOUR FINAL ON-LINE MESSAGE Create a final video and send it to: Friends? Enemies? Your Boss? Your Lawyer?

13 QUESTIONS? 25 ASCII TO BINARY 26 13

14 Planning in the Digital Age APPENDIX DIGITAL ESTATE INFORMATION SAMPLE FORM 1 DIGITAL ESTATE INFORMATION I. LOCATIONS OF HARD COPY FILES AND MEDIA BACKUP Personal records = Financial = Home/apartment records = Media backups = The location of traditional paper records as well as where back ups of digital information are stored is very helpful. II. DEFAULT INFORMATION User names = Passwords = Secret questions: Mother s maiden name = Grade school = Street where grew up = Many clients have default information which they use for many accounts. If no specific access information is provided, this at least provides a starting point. Some clients may also have a method of assigning passwords. If so, the client should provide this information. 1 For another sample form, see James D. Lamm, Digital Audit: Passwords & Digital Property (2012). 16

15 Planning in the Digital Age III. ELECTRONIC DEVICE ACCESS Device Website Username PIN Password Computer home Computer office Operating System Voice mail home Voice mail work Voice mail cell phone Security system Tablet e-reader GPS Router DVR/TiVo Television 17

16 Planning in the Digital Age IV. ACCOUNTS Description address Username PIN Password Disposition Desires Work Home School V. DOMAIN NAMES Website/Domain Name Webhost Username PIN Password Personal Business VI. ON-LINE STORAGE Name Website Username PIN Password Dropbox Google Drive 18

17 Planning in the Digital Age VII. FINANCIAL SOFTWARE Item Website User Name PIN Password Quicken TurboTax VIII. BANKING Institution Website User Name Password ATM PIN Security Image Checking Savings PayPal IX. STOCKS, BONDS, SECURITIES Institution Website User Name Password Other Information 19

18 Planning in the Digital Age X. INCOME TAXES Item Website User Name PIN Password Federal Income tax payment State Income tax payment Prior computerized tax returns XI. RETIREMENT Institution Website User Name Password Other Information XII. INSURANCE Institution Website User Name Password Other Information Health Life Property 20

19 Planning in the Digital Age XIII. CREDIT CARDS Institution Website User Name Password PIN American Express Visa XIV. DEBTS Institution Website User Name Password Other Information Mortgage Cars Student Loan 21

20 Planning in the Digital Age XV. UTILITIES Institution Website User Name Password Other Information Electric Gas Internet Phone(landline) Phone (cell) TV Trash Water XVI. BUSINESSES Institution Website User Name Password Other Information Amazon.com e-bay.com 22

21 Planning in the Digital Age XVII. SOCIAL NETWORKS Institution Website User Name Password Disposition Desires Facebook LinkedIn Twitter MySpace XVIII. DIGITAL MEDIA ACCOUNTS Institution Website User Name Password Other Information Netflix itunes YouTube Hulu Nook Kindle 23

22 Planning in the Digital Age XIX. LOYALTY PROGRAMS Name Website User Name Password Delta Southwest Airlines Best Buy Office Depot XX. OTHER ACCOUNTS Name Website User Name Password Skype LoJack WoW HalfLife Flickr Medical records 24