As mortals we all recognize we will eventually pass on and be survived by family and friends. We also all recognize that shortly after our passing, our home, our physical possessions and our financial assets will be distributed to the beneficiaries we’ve named in our Will or Trust, or for those who haven’t bothered to prepare a Will or Trust, to whatever relatives the laws of Intestate Succession in our state of residence.
Few of us realize that even after we pass away and are buried, and all our physical possessions distributed to our heirs, there also are countless digital records we will leave behind. If we thought about it, we’d likely want to get rid of some of those digital records — such as posts we regret having made and embarrassing selfies that we’d been meaning to delete.
There are also many digital records that we would want others to be able to access and preserve and pass down to those we care about, such as family records, photographs and home movies that formerly served as an historical and sentimental record of who we were and what we cared about. Before the digital age, photo-books, slides, home movies and the like often were dutifully passed down from generation to generation, and often were some people’s treasured possessions.
Unless we have made plans to deal with our digital records, many of them would become inaccessible to those who we would want to have them, while others will remain out there forever and become an enduring embarrassment to our family and friends, as well as diminish our own legacy. In fact unless we make plans for it, our entire digital life may be public for all to see or become or inaccessible to those we most want to have access.
Think about it. Those digital records include all the information stored on your computer, laptop, tablet and smartphone and in the Cloud — and that includes social networks and even your saved and deleted emails.
Should you care that all that digital material will survive you and, in effect, remain forever where it can be dredged up by anyone, good or evil, with the inclination and ability to find it? Just because you deleted something doesn’t mean it is gone.
You may want to consider planning what will happen to those digital assets when you die and how you might handle them now. Some of those assets that you own may have financial value (such as domain names, copyrights, or trademarks) while others, such as the photos, writings, and videos have emotional or sentimental significance.
Why You Might Want to Consider Your Digital Legacy
When you think about it, your digital record often provides a broader picture of who you are than any inventory of your possessions. It stores your communications, your contacts, your shopping habits, and your financial obligations along with your photo and video collections, favorite music and recipes.
But it also may store data you don’t want to share with anyone — maybe thoughtless twitter feeds or Facebook comments, embarrassing comments about family members and friends, visits to titillating online dating or porn sites or any confidential files that could be scooped up by the wrong people and used for nefarious purposes or blackmail.
Your digital data also invites hackers and spammers who can infiltrate your data, steal your passwords, your credit cards, and your user names, and cause all sorts of problems by looting your estate — and you will never know what happened — until your heirs start getting bills or notice sums missing from your accounts.
Clever hackers also can just take a bit here and a bit there from lots of accounts, which makes it almost impossible to stop them. That means you can’t afford to ignore the very real possibility that your digital information may be hacked and used for something more than your next Amazon order, and that you won’t even know that it happened.
Protecting Your Digital Assets Before You Die
Obviously there’s a limit to what you can do to protect your immortal digital information from being misused, but some potential problems can be avoided. For instance, you can leave a list of log-ins, passwords, answers to security questions, and various accounts with someone you trust, in or out of your family, so they can take care of your accounts. (Read our companion article on “How to Call a Halt To Your Digital Legacy—If You Can” for some of the top websites.)
Considering that passwords, at least, should be changed regularly, this list will be a constant work in progress, but it will make it much easier for your heirs to handle and, hopefully, close your accounts.
For those with a negligible digital footprint with little activity beyond an occasional web search, a few emails and various Amazon or PayPal purchases, much of what follows can be skimmed. But most of us — especially in the era of smartphones and tablets — are in and out of the digital world frequently, checking into our emails and social media accounts, doing research on the web and who knows what else.
If you keep track of your digital visits for a few days, you will begin to understand the size of your own footprint. (At the same time, you might jot down all the accounts and passwords that should be on your list.)
If this quick digital use inventory convinces you there’s nothing you want to or need to protect or pass on to your heirs, then let it go.
But if there are digital assets you want to protect, either for financial or emotional reasons, some planning is needed.
If digital assets have financial value — intellectual property such as copyrights, patents and trademarks, or domain names or virtual property for use in online games — family members and heirs should know these valuable assets exist. You may even want to assign them in your Will or transfer ownership to a trust.
If your digital assets have no financial value but do have emotional or other value to family and friends, you might want to name a digital executor in your Will or trust. This digital executor should be the individual entrusted with your list of (hopefully) unique logins, passwords and answers to security questions for your various accounts. To ensure smooth transfer, you might want to insert the following language in your Will or trust: “Ownership of my digital assets shall pass to (blank). I am providing (blank) with my current logins and passwords in a separate document and will endeavor to provide (blank) new logins and passwords as they change.”
Or alternative wording: “Ownership of my digital assets shall pass to (blank). I am providing (blank) with my current logins and passwords in a separate document. Although it is my intention to provide (blank) with a sealed list of my current digital assets, I plan to update this list so it remains current. To the extent that the list of digital assets may be incomplete or out of date, I request that the company running the online account or where the assets are stored to grant my personal representative (blank) or digital executor (blank) access and control over those digital assets and accounts.”
Another possibility: establish a digital asset protection trust, a DAPT for short, especially if the digital assets have significant financial or other value, such as music or publishing rights. A DAPT puts the licensing rights into the trust itself so that trustees can manage the licenses on behalf of the trust beneficiaries.
You should be aware that Wills are an imperfect way to transfer digital assets because a) your instructions may change before a new Will can be executed, and b) Wills become public information when filed for probate, in which event the world would see your passwords. By transferring your digital assets to a trust, you’d avoid probate and public scrutiny.
Or, to be on the safe side, you can write instructions asking your digital executor to close your online accounts on sites like Amazon and eBay, make final entries on your blog (if you have one), and notify online communities of your death.
Digital Assets You Can’t Transfer
You may think that your emails, books you have purchased electronically and social media accounts are your property that can be passed on to your heirs. You cannot leave them in a Will or trust because they are not your property, which is probably spelled out in the terms and agreements when you signed up, if you took time to read this section and parse through the legalese.
In many cases, this means that service providers will not give even limited access to your digital heirs regardless of provisions in a Will or trust that authorize access. Though cyberlaw is evolving, you or your digital executor need to look closely at each account ownership and licensing agreement to determine whether an item is transferable.
What else can or should you do? As the digital world continues to spread and expand, that’s a wait-and-see-question for you and eventually for your digital executor. But you must remember that all that digital information, whatever it may be, may be immortal. Even if you deleted it years ago, or thought you did, it’s possible someone can find it.