16 January 2019
Think about it. Our whole lives are online--bank and investment accounts, social media profiles like Facebook and LinkedIn, shopping sites like Amazon and eBay and the list could go on and on? Have you ever considered what happens to your frequent flyer miles or your shopping rewards points in your absence?
It may sound silly, but studies have shown that an average person has upwards of $17,000 in digital assets. This might include domain names, rewards points, unclaimed Groupon purchases, frequent flyer miles, credit card rewards, subscriptions, pictures, hotel points and more.
While states are beginning to come up with legislation to tackle the challenge of handling digital assets of someone who has passed, this still remains a gray area when it comes to a broad set of guidelines for those handling estates. But it is possible to set up some common-sense directions to heirs that can help them manage the transfer of our digital presences and assets along with our more tangible assets.
Plan Ahead: These are important plans to make while you are alive to make them. Because in the wake of your passing, spouses, family members and other loved ones will be dealing with grief. Managing the transfer of monetary assets will be difficult enough. Add to that the challenge of taking care of our digital legacy can create an emotionally overwhelming situation for our family members.
Know your rights: Complicating matters are the Terms of Service agreements we all agree to whenever we set up an online account or social media profile. Buried within the legal jargon in these agreements is language that spells out how our accounts can be closed out or transferred in the event of death.
The privacy problem: According to Estate Planning Attorney, Michael Brennan, “Those digital assets, while seemingly interconnected with our daily lives pose a problem for those that are tasked with settling our affairs when we pass away. That’s because privacy concerns and archaic laws adopted prior to the growth of the internet (not to mention the invention of texting, instant messaging, social media and the like) scantly address rights of individuals to access intangible data that does not personally belong to them.”
Be proactive: North Carolina enacted a Digital Assets Act in 2016. Here is a link to a blog post about it. As State Legislatures begin to be more proactive in the area of digital asset protection and who is allowed to have access to your information in the event of your passing, it is imperative that you include a digital asset plan in your estate documents.
It's not as simple as you think: It may seem easy enough just to give a family member access to these digital accounts by sharing usernames and passwords. But by clicking “I agree” in the Terms of Service agreements, we actually enter into a contract with the site manager. Sharing information like passwords with others is a violation of the contract and can be considered an illegal offense according to federal law.
What the internet is doing about it: Many companies are coming around to the challenges that come with legacy accounts and online profiles. For example, in 2015 Facebook added the ability for users to name a “legacy contact” who can assume limited activity with your profile after you die. Other social media platforms like Twitter, Pinterest and Instagram also allow family members to deactivate accounts, once they are provided certain documentation.
Best practices: The best advice for your digital assets is to make a list of the primary accounts and profiles you have created. This list can be shared with someone you designate in your will. This person may not be able to log in to your account, but they can work with the site to wind down your account appropriately.
Your email address may be the most important of these digital assets to inform your beneficiaries about. Often, your email address can help identify you and be used to communicate vital information about your account.
POA: You should also consider granting power of attorney to someone you trust. This may not help them much in bypassing the rules of the Terms of Service agreements but assigning power of attorney at least makes your intentions clear in a legal document and can give this person some leverage or authority when carrying out your final wishes.
Most of all, do as much as you can about your digital assets in advance if only to help your family and loved ones deal with these complicated matters in a time of grief. Making their lives a little easier in your absence can make a tremendous difference when it may matter most.