Who controls your digital assets and becomes your online representative in the event of an untimely disability or catastrophic event? In the age of social media, “digital assets” have expanded to include much more than just financial information and assets. And, digital asset management has evolved to also include reputation oversight and management.
So, it begs the question, who can you trust to uphold that reputation and attend to your online assets, should you be unable to manage the oversight of your online life?
Take your free digital footprint assessment here to determine if your digital assets need protection.
Twenty years ago, almost everything from business transactions to artistic creations originated offline and was sometimes converted to digital form. Today, it’s the opposite. Nearly everything begins digitally and often doesn’t get converted to a hard copy or a physical format. As a result, many of us live our lives in the digital universe. But what happens to your digital assets when you are unable to manage them yourself? Who will take care of them? And how will they gain access with passwords and encryptions?
Gertsburg Licata’s estate-planning attorney and partner, Connie Powall, Esq. can help you understand everything you need to know about your digital assets.
How to Define “Digital Assets”
The term “digital assets” encompasses a wide range of personal property. It can include digital property such as:
- social media accounts like Facebook, Instagram, and Twitter
- domain names for websites
- photos and videos
- rights to literary, musical composition, motion picture, or theatrical works
- funds transferred to a 3rd party account like gambling, gaming, or bidding sites
- blog content
- video channels whose content produces advertising revenue for its owner
- cryptocurrencies like Bitcoin, and non-fungible tokens (NFTs)
There are stories abound of people misplacing passwords and private keys to valuable digital assets and in some cases, losing access to them forever. You may recall the notorious bitcoin con artist Gerald Cotton, who died suddenly in 2018 and taking the keys to $250 million worth of other people’s crypto assets. Angry investors spread rumors that he faked his death and absconded with the assets, although no evidence exists to support the rumors.
Even if you don’t invest in cryptocurrency or NFTs, many of your digital assets are protected by passwords that only you have access to. This can become a problem if you die or are not in a position to communicate with others.
What Laws Apply to Digital Assets?
To assist people who haven’t left instructions about the treatment of their digital assets, a majority of U.S. states have adopted their versions of the Uniform Fiduciary Access to Digital Assets Act. Ohio’s version is Chapter 2137 of the Ohio Revised Code. The law allows estate executors and trustees to exercise the same rights over digital assets as over tangible property.
But these laws don’t cover every situation. They can’t be used to override data privacy laws and digital privacy policies that forbid service providers from disclosing passwords or providing access to accounts. Such policies were designed to prevent the public from being victimized, but they sometimes lead to heartache and anxiety.
In one incident, the father of a young marine killed in Iraq sought access to his son’s Yahoo email account. Since Yahoo’s terms of service do not allow third parties to take control of people’s email accounts, the father had to hire a lawyer to sue Yahoo in the Oakland County, California, probate court. The court ordered Yahoo to turn over the contents of the account to the family. Yahoo gave the family a CD containing the soldier’s email correspondence and documents–but it did not provide them with access to the account itself.
Learn about our digital estate planning practice >>
Obstacles to Accessing Other People’s Digital Assets
The obstacles to accessing other people’s digital assets fall into four general categories:
- Passwords – These are often difficult to bypass, and some are impossible.
- Data encryption – Date encryption scrambles data into a format that only someone with the proper passcode can unscramble. All modern cell phones feature data encryption. If personal data, photos, and other content in the phones are not backed up, no one besides the account owner will be able to access them. When people die unexpectedly without sharing their passwords, families and loved ones are not legally allowed to access the content.
- Criminal laws – In many cases, it is a criminal offense to attempt to access a loved one’s digital accounts. Criminal laws and regulations concerning access are evolving but remain unclear.
- Data privacy laws – Federal data privacy laws prohibit service providers from turning over the contents of electronic communications to anyone except the owner without the owner’s consent. Most people find it cost-prohibitive to file a suit against behemoths such as Apple and AT&T.
Submit your question to one of our data privacy attorneys today.
How to Help Yourself and Your Loved Ones
Accessing digital accounts isn’t just a problem for a deceased person’s next of kin. It can also be an issue for people who suddenly become disabled through a stroke, accident, or some other unexpected, catastrophic event, leaving others to handle their business and personal affairs.
Guardians do not have access to digital assets, but they can apply to the court for specific authority over specific assets other than the content of communications. If the personal representative wants access to the content of communications, there needs to be a Will that gives him or her that specific authority*. Alternatively, Gertsburg Licata a can work with you to safeguard your digital asset access and management via our digitally focused “Steward My Social” Power of Attorney instrument.
*A “personal representative,” is defined to include “an executor, administrator, special administrator, other person acting under the authority of the probate court to perform substantially the same function under the law of this state”
Suggestions From Our Data Privacy and Security Experts
- Make a list: inventory your digital accounts and maintain an updated list of login information and passwords.
- Identify one or more people you trust: These people can serve as “inventory agents” for your social media and professional accounts. Share your passwords with them and arrange for them to have a power of attorney allowing them to access those accounts.
- Audit your partnership agreements: If you operate a business, revise your business shareholder or operating agreements to include a succession plan that addresses business digital assets.
- Back up your cloud storage: If you store your records in the cloud, back them up to a local storage device regularly. You might also want to look into cloud-service backup companies such as FidSafe, a secure online safe deposit box offering up to 5 GB of storage space at no charge. It can be used to save digital backups of electronically scanned essential documents such as bank and investment account statements, birth certificates, insurance policies, passwords, tax records, and wills.
- Provide instructions: Write out instructions to future caregivers and an executor explaining how you want your digital life handled. Should your digital records be transferred to a friend, colleague, or family member? Would you like that person to delete any accounts (the digital equivalent of burning old love letters and personal documents in the fireplace)?
- Ensure Consent: Make sure your estate-planning documents provide consent for your loved ones, executor, or legal representative to take control of your digital assets, and allow them to bypass, reset, or recover passwords, where legally permissible. As described above, your written permission itself may not cover every situation, but it’s a good start.
At Gertsburg Licata, we have already done the work for you. These objectives will be met by executing the “Steward My Social” Power of Attorney. Contact us to talk about how you can protect your digital assets with our innovative new estate planning instrument.
Services That Can Help
A number of tech services have sprung up to help people preserve their digital legacies. Companies such as Afternote.com, Aftervault.com, BeCelebrated.com, and Boxego.com can memorialize social media pages, and create and manage legacy accounts. They provide secure encrypted online vaults to hold insurance policies and other important documents, photos, and what to do with social media accounts.
Talk to Gertsburg Licata’s Digital Privacy Attorneys
Gertsburg Licata’s digital estate-planning attorneys created a new digital estate planning tool, the “Steward my Social” Power of Attorney, which helps individuals, entrepreneurs, and business owners plan for the future, including how to handle their digital assets. Not sure where to start? Take our free digital footprint assessment and then call Gertsburg Licata at 216-573-6000 or contact us here.
Connie Powall, Esq. is a partner at Gertsburg Licata. She can be reached at [email protected] or by phone at (216) 573-6000.
Gertsburg Licata is a national, full-service business law and strategic advisory firm offering a full range of legal services. Call 216-573-6000 or contact us here.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction.
