Planning for the Digital Afterlife. But what happens to digital assets? And how do you plan for them? The Need to Plan

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1 The Need to Plan Planning for the Digital Afterlife How many North Carolinians never get around to creating ANY type of estate plan? Miriam H. Markfield Walker Lambe Rhudy Costley & Gill, PLLC Planning for Traditional Assets Who s in Charge? Power of Attorney Attorney-in-Fact/Agent Will Executor Trust Trustee But what happens to digital assets? And how do you plan for them? Roadmap What is the Digital Afterlife? High Speed Internet Access in NC Households What happens to the assets at death or in the event of incapacity? What can you do to plan? Green 90%-100% Durham 87.8% Yellow 70%-89% Orange 81.9% Orange 50%-69% 1

2 What is a Digital Estate? What kinds of assets are there? Traditional financial accounts Accounts and assets without monetary value (primarily and social networking accounts) Blogs, websites & domain names Intellectual property New Types of Property New forms of property Virtual currency Virtual real estate and other property in online communities and games What happens to accounts at death? What happens to accounts at death? Terms of Service govern most digital assets Yahoo and Lance Cpl. Justin Ellsworth, USMC Facebook s Memorialized pages Most accounts are non-transferrable Privacy protections work against the family It s free, but they sell your information. 2

3 General procedures at death of account holder Person requesting account contents or info should provide: ID, contact info and relationship to account holder (may or may not be required to be a relative or Executor) Proof of account holder s death address or other information associated with account Remember: Each service provider has its own set of rules Privacy concerns weigh heavily AGAINST releasing account data No clear procedures or provisions for incapacity of account holder State of the Law Only 7 states have laws on the books to address control over digital assets Many more have studied it or had bills proposed (but not passed) NC S.L Provisions relating to digital assets were removed before passage Connecticut & Rhode Island Executors/administrators must be given access to or copies of the contents of accounts Executors/ administrators must be given access to any electronically stored documents of deceased Indiana Idaho & Oklahoma Executor/administrator (or conservator ID only) has the power to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any service website. Personal representative can direct the termination of social networking accounts, blogs, microblogging or short message services, accounts, or any similar electronic or digital asset of the decedent. Nevada 3

4 Virginia Personal representative of a deceased minor can assume the minor s rights under terms of service agreements for purposes of consenting to and obtaining the disclosure of the contents of the minor s communications and subscriber records. North Carolina S.B. 279/ S.L Personal representative can access, take control of, handle, conduct, continue, distribute, dispose of, or terminate any digital assets and digital accounts. North Carolina S.B. 279/ S.L Digital accounts = Software licenses and , social networking/social media, file sharing, financial management, domain registration, domain name service, web hosting, tax preparation service, online shopping, and any other future types of electronic accounts. North Carolina S.B. 279/ S.L Digital assets = files, s, documents, images, audio, video, and similar items stored on digital devices, including desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones and similar devices now in existence or developed in the future, regardless of the ownership of the physical device upon which the digital asset is stored. Problems with Current Laws Limited definitions of assets/accounts (Connecticut and Rhode Island versions apply only to ) Only Idaho provides for incapacity of account holder Conflict with the Terms of Service the account holder accepted The Big Question: Are digital accounts property? 4

5 Creating a Digital Estate Plan Elements: Inventory Plan Digital Agent Can provide access to Digital Agent Allows you to specify what should be done with various assets (deletion, distribution, preservation, continuation, etc.) Must be aware of how plan can function with the various terms of service Online services available to help Store password and account information & allow user to designate recipients for digital assets (or provide for their deletion) Some plans may only allow 1 beneficiary to be designated per asset Entrustet will run Digital Property searches to help discover digital assets The Approach Challenges & Opportunities Inactive Account Manager debuted April 2013 Select a time frame (3 months of inactivity? 12 months?) when you want Google to Act Google will alert you by or text before it takes action You can specify who should receive your Google account data, or it can be deleted Financial assets will be managed by the Executor or Trustee but will they know where to find them? Digital assets can be distributed among as many beneficiaries as you want Your online presence can continue indefinitely How much of your digital life do you want to share with family or the world? Your (or Your Client s) Legacy I swear I wasn t looking at smut I was just stealing music. Recent UK Survey Found: 16% wanted their online presence to continue with comments enabled 43% wanted accounts closed after death 20% wanted accounts open, but without comments enabled 20% weren t sure AGE DIFFERENCE: 45% of year olds want their accounts to continue, compared with 25% of those over 55 5

6 Considerations for a Plan Quasi-Financial Assets : Social networking accounts or blogs that develop a following Intellectual property concerns The value inherent in the community, itself Who controls these? Cloud computing and storage the right solution? Websites and domain names Virtual property that may have monetary value Considerations for a Plan Quasi-Tangible Personal Property : Items with sentimental value Contents of or social networking accounts Photos May be more difficult to control than traditional tangible personal property Access = control Endless possibilities for closing, distributing, preserving or continuing certain accounts/assets Internet memorials & digital immortality But Remember Your most important digital assets may not have any monetary value Questions? Access = control Don t put all your eggs in one basket! 6