Have you covered your digital assets?
Facebook accounts, blog pages – those assets
July 1, 2016
“Digital assets.” It’s the latest buzzword. It means the ownership interest you have in your online accounts. To a lawyer, it is a subset of “intellectual property”.
But what does it mean in terms of estate planning? Financial writers and estate planners are posting articles all over the internet (and in print) about what happens to your digital assets when you’re gone. The problem is, most of them don’t have a lot to say about it. The articles tend to be short, vague, and not very helpful.
Here’s problem number one: The vast majority, and I’m thinking of something like 99 percent, of the digital assets have no actual financial value. Would anybody pay to take over your Facebook or Twitter account? Probably not. You don’t have a stream of income coming from it, or a pile of cash in it, that someone would be willing to pay for. And if you did have a stream of income – for instance if you were a popular blogger who brought in some advertising money – that ongoing income is probably going to dry up the moment you die.
There are two exceptions to this. Some professional artists or photographers may have posted copyrighted material online. In that case, hopefully you have put copyright notices on your posts, and you have separate digital copies available for your heirs.
The other exception is that the account may be linked to a business. For example, if you have a sole proprietorship which takes orders over the internet, losing those digital accounts could be devastating for the business. In that case, you want to make sure the account is in the name of the business, not in your personal name. And if it is a sole proprietorship, you should have a succession plan in place for the business, so that someone is authorized to take over and continue operations immediately if something happens to you. In that case, the digital assets are secondary to the main business operations.
The other big reason the articles don’t have a whole lot to say about estate planning for digital assets is that the scene is constantly changing. When I think of those sorts of accounts, I tend to think of Facebook, Youtube and Twitter, but a younger person (or at least one who is more hip than I am) might be thinking of Instagram or Tinder. If you’re even less hip than I am (although that’s hard to imagine), you might be thinking of Myspace or Friendster. And anything I write about any of those services now, runs the risk of being completely out of date in the few weeks between my writing it, and its appearance here in the Senior Voice.
For what it’s worth, some of the online services have arrangements you can make for someone to take over your account on your death. For instance Facebook allows you to name a “legacy contact” for the account, who has some limited authority to post and gather information when your account becomes “memorialized” (wonderful way of putting it). Google allows you to set up an “inactive account manager”. Twitter doesn’t have something like that, but they do allow an authorized legal representative to close the account.
Are any of those really necessary though? Last year I became executor for a man who died unexpectedly. As I was going through the paperwork at his home, I found a list of passwords, and I saw that one of them was for Facebook. I logged onto a computer, used the information to get onto his Facebook account, and posted a message informing his Facebook friends of his passing. There was really no need to do anything else. Did I have legal authorization to do that? I don’t know, and I don’t think anyone cares.
So really, for the vast majority of people, the most important thing is to leave a current list of userid’s and passwords. That is useful, not only for social media accounts, but for access to bank and other financial information as well. Unless you are in an unusual situation, such as an internet-based business, there really isn’t any pressing need to do anything more.
But by the time you read this, it could be completely different.
Kenneth Kirk is an Anchorage estate planning attorney. Nothing in this column should be taken as specific legal advice.