In November 2004, a US Marine named Justin Ellsworth was killed in action in Iraq. His parents wanted access to Justin’s email account and asked Yahoo! for help. Yahoo! said no; allowing anyone access to another person’s email account is against their terms of service. Ellsworth’s parents decided to take Yahoo! to court and on April 21, 2005, a Michigan Judge ordered Yahoo! to turn over the contents of Justin’s email account to his parents.
Now it’s 2011. Take a look at your life. You probably use your computer for 4-6 hours per day and are constantly checking email, taking digital photos and interacting online. Facebook has over 600 million users and there are over 150 million blogs worldwide. Americans upload 3 billion photos to the Internet each day and send billions of emails. And it’s not just young people. 75% of the US population now uses the Internet on a daily basis and 98% of Internet users over the age of 70 use email at least once per month. In fact, we’ve estimated that three Facebook users die every single minute!
So what happens to all of these digital assets when someone dies?
To start, we need a definition. Digital assets are online accounts and computer files that you create, use and enjoy during your life. Just like physical assets, digital assets can be either economically or sentimentally valuable. In the physical world, sentimentally valuable assets include family photos, journals, jewelry, collections and other family heirlooms. Economically valuable physical assets include bank accounts, real estate, cars, investments and ownership in businesses.
It is important to add digital assets to Wills and Trusts. Survivors don’t know where these valuable digital assets are stored, or that the assets even exist at all. We store all of our photos on Facebook and on Flickr, but our families and friends don’t know which service we use. Additionally, they don’t know our user names or passwords for either of these services, meaning they will have trouble accessing photos if something were to happen to us. Heirs have two main problems: knowing what digital assets the decedent had and where the digital assets are stored.
It’s important for attorneys to ask their clients about digital assets during the estate planning process. Most people do not think of their digital assets when they are creating their estate plan, so it’s imperative that attorneys ask questions to jog their memory. Law firms that help clients protect their digital assets are on the cutting edge of an emerging issue in estate planning and they are also fully protecting their clients. Leaving digital assets out of estate plans can leave clients unprotected and add to expensive and time consuming digital asset searches after death.
For attorneys, if you decide that you’d like to incorporate digital assets into your estate planning practice, you should add a digital assets section to your intake questionnaire and then decide how you are going to advise your clients to create and update their lists. Clients can store their user names and passwords in a paper list in a safe deposit or on file in their attorney’s office, but this solution is not secure and is hard to update. Clients can also use online services like Entrustet to create their list and store their user information. The most important part is simply starting the conversation.
If you have any questions or would like more information, please feel free to contact us or check out our blog. Entrustet has a library of digital asset education materials, sample wills and intake forms that can help attorneys learn about how to add digital assets to their estate planning practice.
Photo: Guillermo Esteves
