Potente, Business Lawyer and Company Formation

Well, we made it through October 21, 2015 without seeing flying cars whizzing through the air, and your child has not quite ditched the neighborhood skate park to ride hover boards. With 2016 nearly upon us and being one of the lucky individuals to have experienced “Back to the Future Day” in my lifetime, I have understandably spent much time thinking about how far we have come in the digital age. The technologically-savvy individual is able to do an amazing amount of things on the internet. We can share photos, upload videos, store important information, conduct business, send messages to friends all over the world, pay other people with the touch of a screen, and essentially choose to “go paperless” for an ever-growing number of daily activities.

You may now be asking yourself, “What happens to all those things I’ve been doing online when I die?” The short answer: not a whole lot. I’ve emphasized the importance of a proper estate plan ad nauseam in the past (spoiler: it’s still very important). However, with the increasing popularity and widespread use of all those cool things described above, it has become even more important to incorporate digital assets into your estate plan.

To date, there are no federal laws governing digital assets. Several states have enacted laws which do address fiduciary access to email accounts, social media accounts, electronically-stored information, and other online accounts, upon an individual’s incapacity or death. California is unfortunately not one of those states. Because there is not yet any governing law on the subject, it is very important to start thinking about the digital assets you hold and subsequently, implement a plan to take care of them upon your death.

A “digital asset” can mean any kind of digital record that you either own or control, including but not limited to, email, Facebook, Instagram, and other social media accounts, financial accounts, digital media (music, movies, photos), blogs, apps, and any other online or digital file. With no laws governing the disposition of these assets upon your death, these accounts can potentially live in perpetuity or until the company chooses to terminate the account. This may not seem like a big deal to you – and it often doesn’t until you’re actually put in this situation.

To put it in perspective: I had someone who was once very close to me pass away at far too young of an age. He, like most people his age, had a digital footprint and was quite active on social media. At the time of his death, Facebook did not provide users with the “legacy options” it now does. My friend’s family could not access his Facebook account until very recently to either shut it down or turn it into a memorial page. They could not access the final photos he had posted. Others who were not aware of his death continued to share photos on his page and message him through the account. In short, his family was grieving and understandably quite upset that there was nothing they could do about the account at that time.

My decision to share such a personal story is derived from my desire to prevent and/or mitigate any unrest that comes with a situation such as this for you, the reader, and your family and friends. Currently, many apps and online accounts do allow you to designate an individual to access and manage your digital accounts upon your death. Some accounts, such as Gmail, even allow you to set up an automatic deletion of the account and all its data after being inactive for a certain period of time. Take the time to go through all of your online accounts and check with the company to see if you can set something up in the event of your death. If that is not a service it currently provides, ensure that the fiduciary handling your estate will have access to all necessary information to handle and/or terminate your accounts (i.e., logins, passwords, other special instructions, etc.).

The bottom line? Appreciate and embrace the digital age we live in – but do so with mindfulness and planning. As the use and ownership of digital accounts continue to grow, legislation over digital assets will also grow. California has not quite caught up, but you can and should still plan for the disposition of these assets without waiting for legislation to be passed.

Victoria L. Chinsee, Esq.

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This post is for informational purposes only, and merely recites the general rules of the road. Lots of legal rules have exceptions, however, and every case is unique.  Never rely solely on a blog post in evaluating your situation — always contact an attorney when your legal rights and obligations are on the line.

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