The purpose of the digital assets inventory is to ensure that the appropriate person will have access to the digital assets in the event of death or incapacity. So, the digital assets inventory should be compiled in one convenient location. This could be accomplished by storing the digital assets inventory on a flash drive or other means of storage. When choosing the means of storage, keep in mind that the digital assets inventory should be updated regularly. While this may make an electronically stored document or spreadsheet seem preferable, the document itself should not be password protected. There are several online companies such as Legacy Locker and SecureSafe, which offer to maintain such information for you. These websites, touted as online safe deposit boxes, are not intended as a substitute to including provisions in your will regarding who is it inherit your digital assets.
The second step is to provide compressive instructions to accompany the digital assets inventory. These instructions should not only include how to access each digital asset, but what should happen to the digital assets in the event of death or incapacity. That is not to suggest that theses instructions can effectively "gift" digital assets to specified beneficiaries, but they serve as guidance on whether the asset should be memorialized, carried on, sold or deactivated. It is important to consider privacy concerns when drafting these instructions. For example, if a client would like for certain emails to remain private and others to be passed on to family members, the instructions should take that desire into account. When completed, the instructions should be included along with the digital assets inventory to provide easy access and ensure the instructions are carried out. Both the digital assets inventory and related instructions should be kept in a safe place, such as with the client's other estate planning documents. It would also be wise for the estate planning attorney to be given an updated copy of the digital assets inventory.
The third step involves choosing the appropriate person to act as the "digital administrator." This person may be a fiduciary appointed by a power of attorney in the event of a client's incapacity or an executor appointed by the client's will when the client dies. As with any fiduciary appointment, the person chosen to execute the digital estate plan must be trustworthy and available, but they must also be capable of dealing with the digital assets. While this could be the person the client has chosen as executor or attorney-in-fact, it may not be, and a separate appointment may be necessary. In either event, the appointing instrument should include a reference to the Stored Communications Act, 18 U.S.C. §2702(b) & (c), authorizing service providers to release covered communications to such appointee.19 If the person chosen as the digital administrator is not the executor under the client's will, it is important to include language in the will clearly spelling out their authority and directing the executor to provide the digital administrator with a copy of the death certificate, which may be necessary to handle certain digital assets.
The fourth step is to choose the means for carrying out the digital estate plan. The client's testamentary instruments should reference the digital assets, the person chosen to execute the plan and the client's testamentary intent regarding their digital assets. Although it is important to express intent regarding the disposition of your digital assets in your testamentary instruments, passwords and usernames should not be included in a will. Not only would this cause the usernames and passwords to become public after death, but it could also make it more difficult to update the information as it changes.
It may also be prudent to consider a trust for a client's digital assets. The trust would have the normal estate planning advantages, such as avoiding probate. In addition, since the trust does not necessarily become public after death, it could potentially include more details about the client's digital assets. Furthermore, the account information for certain digital assets could be changed to the trust, which may alleviate some postmortem transferability issues.
The fifth and final step is to implement the plan, most of which may not occur until the client dies. However, preliminary steps such as notifying the person nominated as the digital administrator may be taken at any time. Implementing the plan may include probating a will and drafting and executing any documents required by relevant online companies.
These steps may seem like a daunting task to the estate planning attorney, as the breadth of digital assets is wide; however, they are becoming as important as taking inventory of a client's traditional assets. By including appropriately worded language on the estate planning questionnaire sent to a client in advance of your meeting, much of the legwork can be done by the client.
Paul Hyl is a partner at estate planning firm Genser Dubow Genser & Cona. Adam Kahn, a law clerk at the firm, assisted in the preparation of this article.
Endnotes:
1. "Older Adults and Internet Use," Pew Research Center's Internet & American Life Project (June 6, 2012), http://pewinternet.org/Reports/2012/Older-adults-and-internet-use.aspx.
2. "How Do I Report a Deceased Person or an Account That Needs to Be Memorialized?," Facebook, https://www.facebook.com/help/?faq=150486848354038 (last visited Jan. 7, 2012).
3. Justin Atwater, "Who Owns E-Mail? Do You Have the Right to Decide the Disposition of Your Private Digital Life?," 2006 Utah L. Rev. 397, 400-01(2006).
4. Id.
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