Evaluación

a. Significance, Digital Assets Are Widespread. Many if not most individuals have

multiple computers, cell phones, iPads, iPods, Nooks or Kindles, and are on Facebook (and perhaps LinkedIn or Twitter), have a Netflix account, have thousands of digital pictures, multiple email addresses. Some assets may be stored in the Cloud. There are various online accounts, including stock accounts, bank accounts, airline travel accounts, and participation in various reward programs. The individual may own websites. There can be a PayPal account with value in it.

b. Challenges. The first challenge is finding the person’s valuable or significant

digital property. The second challenge is that these accounts, records, and digital property may be protected by passwords and encryption. The third challenge is that federal and state criminal and data privacy laws may be significant obstacles to reaching digital property. (The privacy laws require that the user consent; consent by the fiduciary on behalf of a decedent is not sufficient. Even with consent, disclosure is voluntary and many providers will not release information to anyone other than the registered account holder.)

c. Identification; Inventory of Digital Assets. This information is vital for the family

and vital for the executor to be able to correctly handle these assets. Everyone with digital assets would greatly assist their families and executors by preparing an inventory of digital assets and their related information to serve as a roadmap to those assets. The helpful list of digital assets and accounts would include for each such asset or account: the physical location, digital location, information contained, user name, password, beneficiary (if any) and any helpful instructions. Where should it be kept? One alternative is to keep a hard copy with the will (obviously not in it) or with other important papers. Another alternative is to leave such a list on a commercial platform. An industry has developed to help people handle their digital assets. Services such as Legacy Locker, AssetLock, Dead Man’s Switch, Entrustet or others will store a digital inventory and will take pre- agreed actions at the owner’s death.

Jim Lamm suggests doing a digital fire drill. Specifically ask the client to think about appropriate steps concerning his digital life if his computer were stolen, if he became incompetent, and if he died.

d. Accessing and Managing Digital Assets. While an individual may own the right to her own content, she may merely have a license to use the platform, and licenses often expire at death so transferability of the content may be problematic. Some accounts may even be deleted at death, creating an immediate nightmare for an executor.

When an individual creates a digital account, no one reads the contract information to determine what happens at the individual’s death. For example, the Facebook contract provides that upon someone’s death, the account may be "memorialized," or the account may be closed upon request from the person’s next of kin. Yahoo permits family members to close the account, but not to access the account without a court order. (Which “family member” gets access? Is it first come, first served?)

If the fiduciary (or family members) do not know passwords, accessing digital accounts may be extremely difficult (if not impossible).

e. Uniform Law Commission Project. The Uniform Law Commission has a

committee (the Fiduciary Access to Digital Assets Committee) that is addressing appropriate legislation that will vest fiduciaries with at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets.

f. Disability. Include the words “digital assets” in the power of attorney. It is unclear

whether the host will recognize a power of attorney, but in the case of a dispute, at least the attorney can point to specific authorization in the power of attorney. It is likely that most digital contracts do not address incompetency.

g. Will. Three things should be considered in the will: who gets what digital assets, powers for the executor, and authority for the executor to hire help with digital assets.

The will could expressly provide for digital assets, separate from other tangible personal property. For example, the will could leave the computer to one child, but provide that all children get copies of family photographs. Another possibility is to leave a list outside the will (which may or may not be legally binding depending upon state law, but at least it expresses intentions to the family).

Broad-based powers of executors under state law theoretically are broad enough to deal with digital assets. However, adding the words “digital assets” in the executor’s powers in the will may facilitate convincing the host to recognize the executor’s authority.

Provide specifically that the executor can hire help to access and deal with digital assets. State law powers probably give that authority, but an express power may avoid confusion.

h. Revocable Trusts. Service providers may be reluctant to deal with an executor;

they may be even more confused about dealing with a trustee after someone has died.

i. Consent Form. Attorneys should routinely discuss digital consent forms with

digital account providers. Jim Lamm (Minneapolis, Minnesota) offers the following form:

Authorization and Consent for Release of Electronically Stored Information

I hereby authorize any person or entity that possesses, custodies, or controls any electronically stored information of mine or that provides to me an electronic communication service or remote computing service, whether public or private, to divulge to my then-acting fiduciaries at any time: (1) any electronically stored information of mine; (2) the contents of any communication that is in electronic storage by that service or that is carried or maintained on that service; (3) any record or other information pertaining to me with respect to that service. The terms used in this authorization are to be construed as broadly as possible, and the term “fiduciaries” includes an attorney-in-fact acting under a power of attorney document signed by me, a guardian or conservator appointed for me, a trustee of my revocable trust, and a personal representative (executor) of my estate.

This authorization is to be construed to be my lawful consent under the Electronic Communications Privacy Act of 1986, as amended; the Computer Fraud and Abuse Act of 1986, as amended; and any other applicable federal or state data privacy law or criminal law. This authorization is effective immediately. Unless this authorization is revoked by me in writing while I am competent, this authorization continues to be effective during any period that I am incapacitated and continues to be effective after my death.

Unless a person or entity has received actual notice that this authorization has been validly revoked by me, that person or entity receiving this authorization may act in reliance on the assumption that it is valid and unrevoked, and that person or entity is released and held harmless by me, my heirs, legal representatives, successors, and assigns from any loss suffered or liability incurred for acting according to this authorization. A person or entity may accept a copy or facsimile of this original authorization as though it were an original document.

Signed ________________, 2013

_________________________________

j. Digital Property Provision for a Will. Jim Lamm also provides this “powers” will

form provision.

Powers and authorizations regarding digital property. The personal representative may exercise all powers that an absolute owner would have and any other powers appropriate to achieve the proper investment, management, and distribution of: (1) any kind of computing device of mine; (2) any kind of data to storage device or medium of mine; (3) any electronically stored information of mine; (4) any user account of mine; and (5) any domain name of mine. The personal representative may obtain copies of any electronically stored information of mine from any person or entity that possesses, custodies, or controls that information. I hereby authorize any person or entity that possesses, custodies, or controls any electronically stored information of mine or that provides to me an electronic

communication service or remote computing service, whether public or private, to divulge to the personal representative: (1) any electronically stored information of mine; (2) the contents of any communication that is in electronic storage by that service or that is carried or maintained on that service; (3) any record or other information pertaining to me with respect to that service. This authorization is to be construed to be my lawful consent under the Electronic Communications Privacy Act of 1986, as amended; the Computer Fraud and Abuse Act of 1986, as amended; and any other applicable federal or state data privacy law or criminal law. The personal representative may employ any consultants or agents to advise or assist the personal representative in decrypting any encrypted electronically stored information of mine or in bypassing, resetting, or recovering any password or other kind of authentication or authorization, and I hereby authorize the personal representative to take any of these actions to access: (1) any kind of computing device of mine; (2) any kind of data storage device or medium of mine; (3) any electronically stored information of mine; and (4) any user account of mine. The terms used in this paragraph are to be construed as broadly as possible, and the term “user account” includes without limitation an established relationship between a user and a computing device or between a user and a provider of Internet or other network access, electronic communication services, or remote computing services, whether public or private.