Although
I am neither a member nor a huge fan of the American Bar Association, it does
publish some very helpful material. The
following is an excerpt from an article by Dennis Kennedy, who is an
information technology lawyer and legal technology writer who publishes a
monthly column in the ABA Journal. You can find the full text of
the article at http://www.abanet.org/lpm/lpt/articles/ftr03103.shtml,
and you can find Dennis Kennedy’s blog at www.denniskennedy.com/blog.
The
article makes the very good point that in the Internet Age, a whole new set of
considerations comes to the fore when we take into account our so-called “digital
assets.” Being aware of the concepts in Mr.
Kennedy’s article is critical if you own a computer where you store personal information;
if you shop online; if you have multiple email, Facebook, or Twitter (or other
social networking) accounts; or if you have online access to your financial accounts. If you are reading this, you probably need to
be paying attention.
So
here’s the excerpt:
Although
you will occasionally read articles suggesting that you cover your digital
assets explicitly in your will or trust or even create a unique document to
cover them, the fact is that most of us do not get around to doing that. Our digital world and our digital assets
change on a regular basis. Almost by
definition, any document that we create will be out of date when the time comes
to use it.
A
Simple Five-Step Plan to Manage Your Digital Estate
While
I doubt that any of us will be able to put together a foolproof and perfect
plan for our digital assets and affairs, the fact is that most of leave our
real-world assets and affairs in less than perfect order. However, we at least try to make things
easier for our survivors who have to handle our real-world estate. The best we can do is to put things in order
as well as we can, pick the right people to handle them, and leave reasonably
clear instructions. I suggest that we
want to try to do the same things for our digital estates.
Toward
that end, I want to recommend a simple five-step plan that you can start on
today and then revisit from time to time.
In most cases, these steps have real world analogies and I encourage you
to think in those terms. Build on what
you know.
Step
1. Inventory Your Digital Assets.
I
spent a large part of my early legal career as an estate planning lawyer. In the case of either death or incapacity,
the first important step is to track down and identify all of the assets,
liabilities and other concerns that must be addressed. Once an inventory is created, you can move
forward with marshalling and collecting assets, identifying outstanding
liabilities and paying them in a timely fashion, and dealing with outstanding issues,
such as turning off utilities, canceling credit cards, arranging for storage or
disposal and the like.
In
the real world, your family and designated successors (personal representative
of your estate, trustee of your trust or attorney-in-fact under a durable power
of attorney) will be aided immensely by any list of assets and liabilities that
you can prepare for them and leave in a place that is easy for them to obtain.
In
your digital world, you also want to help your successors by creating an
inventory. The more detailed and
accurate the better, of course, but even a small start can be of help. Here are some of the things I suggest that
you inventory:
- Hardware. Inventorying
your hardware seems like an easier project that it actually will be. I suggest that you create a list of your
hardware with a summary overview of what is on it. Creating the inventory is likely to be
an eye-opener for you. You are
likely to find that you have important information not only on the
computer system you use everyday, but also on multiple other computers. Many of us have at least one laptop and
one or more desktop computers. Many
people keep copies of vital information on their work computers. Where do you back up information? You might have many USB flash drives,
USB hard drives, backup CDs or DVDs.
There might be important pictures still on digital cameras and even
information on iPods or other devices. - Software. Do you use
Quicken or another financial program?
What income tax preparation programs do you use? Do you create spreadsheets or Word
documents with important financial information? If you blog, is there a program that
someone would need to use to post news to your blog? - File structures. Your inventory
should sketch out the main folders and places where you keep personal,
financial and client files and documents.
For someone like me, I also have audio and video of presentations
and podcasts that I’d want someone to be able to locate and deal with. You might have important collections of
family photos or videos or work in progress. - Online presence. Create a list
of your Web site(s), blog(s), Facebook and other social media accounts,
online backup sites, online sites where you store documents, photos or
other files, and listservs, groups or other sites to which you belong. - Online accounts. Amazon and
other shopping sites make it easy for you to create accounts and include
credit card information. You might
also have online access to bank and investment accounts. In fact, in many cases, you might no longer
be receiving paper statements for accounts. If you don’t identify these accounts, it
will be difficult for your successors to even know that they exist because
there simply will be no paper trail.
Also, make a list of all the e-mail accounts you have and use. Many of us have several e-mail accounts
these days. - Work information. Lawyers might
have access to client sites, collaboration sites, online document
repositories or other information that no one else knows about. In addition, they might have access to
software, online tools or online databases that someone taking over their
work will need to have. In some
firms, lawyers might have important network passwords, backup media or
other digital assets the existence or value of which is not realized until
they are gone.
At
this point, you really want to gather and collect as much information as you
can for your inventory. You can work on
organizing and prioritizing later.
Step
2. Identify Appropriate Help.
In
our estate plans, we typically name a surviving spouse or adult child,
especially one with financial savvy, as a personal representative or trustee. That person, however, might well be the worst
possible choice for dealing with our digital assets, especially if they are not
computer savvy. We also recommend
appropriate lawyers, accountants and financial planners to assist our survivors
with our financial affairs after our deaths.
You
will want to give serious thought to who should be looking into your digital
assets on your demise and give thought to naming them in an official capacity
in some cases or clearly identifying individuals as “go to” people in other
cases. Here’s a simple exercise to help
you: Imagine that you have died or are incapacitated. Who do you want to turn on your computer to
find out and deal with what’s there? Let
them know that and let others know that.
If the IT person in your office could assist your surviving spouse, then
make it clear that he or she should be engaged to help. A child you might not want making financial
decisions might be just the one you want going through your digital world.
I
also suggest talking to your estate planning lawyer to see if dealing with your
computers and digital assets is something about which he or she has expertise.
Step
3. Provide for Access.
While
we are all cautioned never to write down passwords and PIN numbers, the simple
fact is that, if we do not do it and keep them in a safe place where they can
be found at an appropriate time, no one will be able to access our computers
and accounts. This not only can cause
delay, frustration and inconvenience, it can also mean that our best friends
scattered around the country and world might well find out about our demise
weeks after a funeral that they would have wanted to attend.
Unfortunately,
as I mentioned earlier, good security means that your passwords are a moving
target because you should be changing them on a regular basis. I still think it’s useful to keep a list of
passwords in a safe deposit box or other safe place that someone knows about. My old law firm routinely keeps important
personal documents of its clients in a vault.
Keeping a document with your passwords and other online account
information with the other important documents will help your survivors. Another approach might be to tell your lawyer
where the password list is kept and let him or her tell your survivors at the
appropriate time so that it can be located.
Do
not underestimate the difficulties that can arise from passwords. It is possible that some of us now have
hundreds of passworded accounts. In most
cases, you should be able to eventually get access to accounts with a death
certificate and appropriate documentation.
That should provide an alternative to the morbid ideas you might have
had when I mentioned the thumbprint scanner issue earlier in this article.
Step
4. Provide Instructions.
I
started with the story of Andy Olmsted because it is a perfect example of
someone who knew what he wanted to happen and gave instructions for that to
happen. Most of us will not reach a
point where we will sit down and provide detailed instructions unless we face
what I used to call when I did estate planning a “focusing event” – both
spouses flying on the same plane, going into combat, terminal illness or the
like.
There
are a number of areas where your survivors would appreciate instructions:
- Notifications. Many of us now
have Facebook “friends,” LinkedIn “connections,” Twitter “followers” and
others we communicate with on a regular basis. If we have a blog or Web site, we might
have people who read our words or visit our sites on a regular basis. If we want those people notified, we
need not only to make our wishes clear, but to provide access to the tools
and give instructions so that can happen.
Think about Andy Olmsted’s example.
He wrote the post, but he had to let someone know that it existed,
how to access his blog, how to post it to his blog, and how someone should
respond to the comments the post would receive. There are instances now of survivors who
continue to update Facebook accounts and provide other information online
after someone dies. - Continuing or closing sites. In my case, I
have a Web site that’s been around for almost 15 years and a blog with
seven years of posts. I’m not sure
that I really want that to disappear.
It would still be a valuable resource if I were gone. If you want a site to continue, you will
want to give instructions as to how that might occur (e.g., preserve
what’s there or perhaps have someone take it over and continue it). Even for sites or accounts that you want
closed, you might want to be sure that a copy is made and kept, and that
pictures, audio or video are saved. - Realizing value. Let’s face it,
none of us are likely to realize the post-death financial revenues of
Graceland and the Elvis Presley estate.
However, simply shutting down sites might cut off potential revenue
streams from e-books or other revenue-producing items. In the case of popular blogs,
photography sites or online videos, your estate might be able to realize
income from licensing, creating a book or taking other steps to “monetize”
content. In some cases, you might
have already started some of those projects. - “Do Not Delete” items. People now
routinely digitize all kinds of important document, photos and videos. For example, you might have scanned
historical family pictures or family videos, or have a folder with the
novel or screenplay you've been working on. If you intend that they be passed on,
make sure that they are identified and not lost when a hard drive is
deleted. - “Bequeathed” information. As mentioned
previously, you might be keeping family, business or other information
that should be made available to specific people or even donated to a
university or other archive.
Step
5. Give Appropriate Authority.
For
some of us, and this might become more the case as time goes on, it makes sense
to designate specific knowledgeable people and provide them with the
appropriate authority to manage our digital assets. It might make sense to designate
co-attorneys-in-fact, co-executors or co-trustees, where one is specifically
tasked with taking the responsibility for our digital assets and affairs. Finding estate planning lawyers who are
experienced and knowledgeable in “digital estates” will be essential in certain
cases.
In
addition, you might look into ways that your online accounts might permit you
to designate others to act on your behalf or get added to your accounts. Especially in the cases of people who are not
married or in a state where domestic partnerships would help, finding ways to
give exactly the people the authority you want to manage your digital affairs
will be very important. I expect to see
this area continuing to evolve, with many areas of uncertainty.
Tips
for Providing Assistance After the Death of Another
It’s
also possible that either as a survivor or as a lawyer, you might find yourself
in a position where you need to handle someone’s digital affairs. I have a few tips.
- Find knowledgeable technical
and legal help. - In the case of a death, try to
get to contact lists, e-mail accounts and social media accounts to notify
friends who the deceased would want to be notified. - Change all passwords as soon as
possible. - Try to understand the totality
of the person’s online presence and identify some of the people he or she
has interacted with most for assistance, especially in the social media
platforms. - Do not start closing accounts,
shutting down hosting and e-mail, or taking other drastic steps until you
have a good sense of the individual’s presence and what you are ultimately
going to do with it. Keeping a Web
site up for a year or more will not be expensive. Shutting it down too early and losing
valuable data could be quite expensive. - Be slow to delete, but when you
delete or dispose of computers and drives, delete in accordance with
forensic standards so data cannot be retrieved by others. - Spend $100 on an external USB
hard drive and make a copy of all hard drives, flash drives and other data
and keep them in one safe place. Once
you start to go through the data, you can keep another drive with the
“good stuff.” - Make copies of Web sites and
other online accounts. - Locate all the financial
information and client records as soon as possible and aggregate and
isolate them. - Remove credit card information
from shopping accounts. - Err on the side of keeping
e-mail, documents and photographs for family members.
Start
Thinking About Your Digital Estate Plan Today
The
issue of what death means in the digital world has been with us for many years. It really started to come to public attention
with the Iraq war, though, especially in terms of access/ownership of e-mail
accounts and getting to online banking and other accounts by survivors of soldiers
killed in action. Today, our lifetime
digital presence has grown exponentially and the issues involved in handling
our digital assets and affairs have also grown dramatically. If you take time to work on the five-step
plan suggested in this article, ideally in connection with updating your estate
plan, you’ll help make things easier for your survivors and improve the chances
that your wishes are followed.