There have been many articles written, and will be many articles written, regarding estate planning in the age of digital assets. Even the meaning of “digital assets” is being defined as we speak. Just because this area of law is still being defined and developed is no reason why your current Wills, Trusts, and estate plans should not attempt to deal with this. As a matter of fact, because of the uncertainty surrounding digital assets, it is most important that your current estate plan actually does deal with these concepts. In a recent case where the Supreme Court of The United States acknowledged the personal, intimate nature of a Smartphone by indicating that a police officer needs a warrant to search a Smartphone, Chief Justice John Roberts provides: “It is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives”.
An age-old maxim of the law provides, “possession is nine-tenths of the law”. This is also very true in the age of Facebook, Twitter, Flickr, Pinterest, LinkedIn, and other forms of social media. Even access to one’s computer and cell phone/Smartphone is password-based. Those who have your passwords, have access to your digital assets. This can be both a problem and it can be an enormous help, depending on the circumstances.
We have heard multiple stories where Facebook has banned a parent from a decedent child’s Facebook page, allowing the Facebook page to remain open with various Facebook “friends” being able to post on the decedent’s page for public viewing. As a parent, this appalls me. Through the eyes of the decedent, however, if she would have wanted her parent to have access to her Facebook page, she would have or should have given her the passwords. The argument is one that should be determined while a person is alive, not after they have passed on and cannot participate in the dialogue.
What are digital assets. In order to help define this issue, our Michigan Legislature, under House Bill #5368, has proposed amendments to its statutes concerning estate planning. In the proposed amendment, Digital Asset is defined as:
“…electronic information created, generated, sent, communicated, received, or stored by electronic means and on a digital service or digital device. Digital account includes a username, word, character, code, or contract right under a Terms-of-Service Agreement”.
In other words, digital asset means “everything”. While, obviously, it does not mean your Gibson guitar or your old coin collection stored in your closet, the proposed bill does purport to make digital assets property; which would then subject them to the existing estate planning rules for personal property.
During the current state of flux concerning our estate planning laws coming into age with modern technology and social media, what are we supposed to do? First, you must think about it and determine who do you want to have access to your personal accounts upon your demise or incapacity and what do you want done with them? It could be that you want someone to simply delete your accounts. It could be that you want to gain access to thousands of items of music and/or pictures. In any event, the first step in this process is to think about each digital account and your digital information and determine what you want done. Second, is to then talk to your attorney to create an estate plan that purports to accomplish your goals. Even with the law in flux, there are still some things that should be done and then possibly modified as the law is defined.
The first of these may be obvious. If you have an account that you absolutely do not want anyone to see upon your demise, you should have someone you trust gain access to this account with instructions to terminate and delete the account. Then, this authority should be contained in your estate plan, or a limited Power of Attorney, to protect that person from other family members who may disagree with this process.
A Power of Attorney, as used in estate planning, is a document that allows a trusted person to have access over your personal business and affairs upon your incapacitation (while you are still alive). A Will provides for control over your assets after your demise. Even though the law is unclear, your desired intent should be set forth in these documents. In a world of confusion, where law is developing, your intent still controls. It is worth pointing out that the intent of the Maker of a Will, and the intent of the Principal of the Power of Attorney is still the predominant controlling factor when the Court determines a course of action after the fact. Therefore, it is my recommendation that your intent regarding your digital assets be reflected in your estate plan. Your estate plan does not need to be made public prior to its need, but it should be reflected and properly executed.
I strongly argue that the time to make these decisions is not by other people once you are incapacitated or passed; the time is now, when you are of sound mind.
Regarding your digital assets, doing something gives you a good chance that your desires will be followed. Doing nothing not only leaves these important decisions up to other people, but creates an environment that invites acrimony, fighting, and general disputes between the people you most care about.