Virtual Assets and Real Advice - Clients Need Candid Advice Regarding their Digital Assets (9 of 10)

(Part 9 of 10 part series)

C. Wills

    A will is usually an effective way of disposing of an individual’s property at death.[i]  However, the use of wills in planning for online digital assets can be problematic.[ii]  On one hand, wills are public documents once they are probated after the maker of the will dies. [iii]  So simply adding a list of all digital assets along with the attending usernames and passwords could present a prohibitive security risk.[iv]  On the other hand, it can be difficult to constantly update a will to keep pace with the rapidly changing nature of a person’s digital estate.[v]  Most wills require formalities to validly create or update a will, which could be overly burdensome to do every time a person changes his e-mail address, online banking profile, or deletes an old blog.[vi]

In response to these logistical problems, some planners suggest appointing a digital executor in the will and incorporate by reference a separate listing of digital assets, along with usernames and passwords.[vii]  However, even if every digital asset was covered in a decedent’s will, that does not solve the problems outlined above when online assets are governed by restrictive terms of service agreements.[viii]  If a provider’s terms of service restrict access to anyone other than the deceased user, the executor will likely be denied access and the estate plan will fail.[ix]  If an executor tries to use the decedent’s username and password to access the asset, the executor could face criminal charges for unauthorized access under the SCA.[x]

D. Trusts

    Digital estate planners are also employing the use of trusts to plan for digital estate planning.[xi]  Trusts have some advantages over wills because they are easier to amend and they do not become part of the public record.[xii]   In theory, a trust creator can place digital assets along with their usernames and passwords into a digital trust and appoint a third-party trustee to manage the assets according to the creator’s terms as set forth in the trust document.[xiii]  Because the trust’s ownership of the assets survives the creator, the assets can be controlled after the creator’s death or incapacity without the need for sharing passwords.[xiv]

    While the theory behind these digital trusts makes sense, digital asset trusts are extremely new to the scene and have yet to be tested.[xv]  Furthermore, most online service providers do not have options to open an account under a trust name which could lead to a dispute down the road as to whether the account was opened in violation of the terms and service agreement.

E. Online Planning Services and Other Self-Help Options

Over the past few years, dozens of providers have cropped up online seeking to help people manage the disposition of their digital assets at death or incapacity.[xvi]  For example, “Password Box” (formerly Legacy Locker) is an online service that allows you to automatically store your usernames and passwords on their secure site every time you create an account on the internet.[xvii]  You can also manage, add, delete and even share the information you store on Password Box.[xviii]   While a service like this could do the trick when it comes to disposing of a person’s digital assets upon death, there are two main problems: first, the reliance on password sharing puts this method at risk similar to wills as described above; and second, these services are so new, it is unknown whether they will be around when the client or his survivors will need them. 

On the other hand, these two problems could be avoided if the user opts to download his digital asset and keep an electronic copy offline.  In fact, many online service providers not only allow digital assets to be downloaded by the user, but they provide the functionality to accomplish it.[xix]  For example Twitter users can click on a link, “Request your archive” under the account settings drop down on the main page.[xx]  Within a few days Twitter will send an e-mail with a link to access a .zip file containing “a snapshot of [the user’s] Twitter information, starting with [the user’s] first Tweet.”[xxi]  If the user saves that file offline, it will not be subject to any restrictive terms of service agreement and any dispositional restrictions would not apply.  However, performing manual downloads on a regular basis might not be practical.

(Rest of article continued in series)