Digital Assets

Although I have been practicing law for over a decade, my background is in the field of communications including an undergraduate degree in telecommunications. During my junior year at Bowling Green, I took a course titled, "New Electronic Media." It was in that class that I first heard of the internet which was still in its infancy at that time. I remember my professor declaring that the internet was going to change the world as we knew it. Back then, I could never have imagined how ubiquitous the internet would become or that it would become such an integral part of our daily lives. It has become second nature to most of us, but did you ever stop and consider what happens to all of your on-line "stuff" after you die? What rights do your family and heirs have to your on-line assets and accounts after you are gone?

Often, your rights to on-line accounts are governed by license agreements that you consent to by clicking "I agree" or "I accept" when establishing the accounts. These "clickwrap agreements" often contain language stating that the account is solely for your use and is non-transferable. This can be troublesome for your family, heirs, or the executor of your estate after you die because it means that they may not be able to access the accounts. There are also very few existing laws that cover these matters. This is why it is so important to address these issues as part of your estate planning process.

First, make a list of all of your "digital assets," These include tangible things such as computers, disks, flash drives and other storage devices as well as intangible items such as email accounts, web pages, domain names, social media accounts, blogs, on-line music and photo storage, cloud storage, and on-line banking and shopping just to name a few. Next, decide who you want to designate as the person that will handle the management of these assets. This may be the executor of your estate. However, if that individual is not tech-savvy, you may want to consider someone else who can assist your executor.

Once you have decided who will handle your digital accounts and assets, you should provide that individual with pertinent information (i.e. usernames and passwords) so that he or she has access to them. As noted above, the user agreements for many on-line accounts may prohibit anyone other than the original account owner from obtaining access even after death. There have been several well publicized cases in recent years involving family members that attempted to gain access to their loved one's email or social media accounts only to find out that the non-transferability provision of the original user agreement prevented such access. If you provide your representative with a list of usernames and passwords for your on-line accounts, it will save him or her time, frustration, and a possible legal battle. Obviously, great care should be taken in creating, maintaining, and storing this list. You should keep it in a safe and secure place. Additionally, you will need to keep it updated regularly.

Finally, you should consider updating your estate planning documents to address your digital assets. This may include designating your executor or another individual to handle these assets; adding provisions to your estate planning documents which give your representatives access to your on-line accounts; including language in your documents to indicate that you have left a separate document which contains an inventory of your digital assets and instructions so that your representative is aware of it; and including provisions in your will or trust which designate beneficiaries of specific digital assets, especially if they have significant value.

While the on-line world has become a significant part of our daily lives, laws addressing property and access rights to digital assets lag behind its rapid and ever-changing development. However, you can take steps now to protect and plan for these assets and to provide your loved ones with information and instructions that they will need to address them after you are gone.

By: Lisa J. Roth, Esq.

Legal counsel to the Cleveland Memorial society

Lisa Roth is a graduate of Cleveland Marshall School of Law. She is with the law firm Ziegler Metzger, LLP.