December 2012 Bar Bulletin
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December 2012 Bar Bulletin

Don't Forget the Digital Assets

By Chris Pothering


Do you ask your clients if they know what happens to their digital assets once they die? Do you know what happens to your own digital assets when you die?

Digital assets are those which exist in a solely electronic and non-tangible manner, such as email, digital photos, online banking accounts and records, media libraries (such as iTunes), and social media accounts such as Facebook, LinkedIn and YouTube, as well as the content posted on the accounts. In this age of social media, online banking and bill-paying services, it is critical that your clients think about what will happen to these digital assets and plan ahead for how to handle them after their passing.

Most states, including Washington, have not passed laws (yet) to address digital assets. The states that have passed such laws mostly address email, and even those laws vary from state to state. But digital assets include so much more than just email, and most clients would likely feel differently about how to handle different types of online accounts. Some accounts clients might want to have canceled immediately; others, such as digital photo albums, clients may want to survive and be transferred to a family member.

Your client's estate planning should include planning for social media and other digital assets. If your client has an active online persona like many people these days, your client may want to consider naming a "digital executor" who may or may not be the same person whom she has named as the executor of the rest of her estate, depending on the technological savvy of the executor.

Unlike tangible assets, however, digital assets can be a lot harder to manage after the death of your client. Your client's digital executor, or whomever your client has directed to handle her digital assets, should have been advised as to your client's wishes for the fate of each account.

Once provided with these directions, the digital executor should be prepared to jump through some hoops to access the digital accounts. For example, when your client created a digital account, your client agreed to the terms and conditions for use of that account. These terms and conditions usually prohibit your client from permitting anyone to access her account except for the client herself.

Therefore, many digital-account providers refuse to allow access to a decedent's digital executor or representative, or even a family member, who is attempting to access or close an account without being able to provide the specific user name and password associated with the account.

In the absence of uniform law on the fate of a decedent's digital assets, digital providers look to the terms and conditions your client entered into when she created each particular digital account. Those terms will govern how the account will be handled.

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