In the digital, virtual, online world we live in, account passwords both protect and frustrate our access to valuable intangible assets.
As more of our valuables consist of intangible digital assets and accounts stored online, the troublesome issue of access to these intangible assets is one of ever growing importance.
Let us consider what we can do to safeguard future access to our digital assets and online accounts by enabling persons we trust to access them should we become incapacitated and when we die.
First, what is a digital asset?
“A digital asset is any item of text or media that has been formatted into a binary source that includes the right to use it. … .” (van Niekerk, A.J. 2006)
Common examples of digital assets are online bank accounts, e-mail accounts, electronic media, online blogs, online shopping accounts (e.g., Pay-Pal and E-bay), and online social media (e.g., Facebook).
Nowadays, with many people spending so much of their time and efforts online, they are creating important digital assets and accounts; assets that their families will want to access after their death.
We have all heard about the families of deceased veterans who wanted to access a deceased soldier’s private e-mail accounts for sentimental and family reasons.
These families were forced to sue Internet giants like Facebook, Google and Yahoo! in order to overcome obstacles regarding access by others when an account owner dies.
So why are such companies unwilling to allow families and even executors access to a decedent’s account?
The reason is the 1986 federal Stored Communications Act (18 USC section 2702). It protects an account owner’s privacy (above all else) and makes it a crime for third parties, such as Facebook or Google, to give access to anyone else, without authorization from the account holder, to a portal through which electronic communication is provided.
So what can we do?
First, we can inventory all of our online accounts, passwords, and encryption protocols so that our agents, and whoever administers our estate, have password access.
Nowadays there are even companies that provided “digital password vaults” where all of one’s account information can be stored in one place.
Much grief and trouble can be avoided simply by having inventoried our accounts and their passwords and making that inventory available to necessary parties.
Naturally, there are some digital assets that are highly personal, perhaps including one’s Facebook account or an online blog that one may not wish to have accessed by anyone else after death.
With respect to these assets, one may decide not to share the account password and inquire with the online company regarding destruction of the contents after death.
Second, subject to limitations imposed by end user license agreements of the online company that has custody of the digital asset, we can assign ownership to some of our digital assets to the trustee of our living trust and/or include special provisions within our powers of attorney and our wills that give the agent and executor power to access these digital assets.
Third, we can be selective as to which online companies we use. Read each company’s End User License Agreement (“EULA”) and Terms of Use. The agreements of Google, Facebook and Yahoo! vary significantly from each other.
These license agreements control the terms of release of the contents of an account, access to an account, and transfer of an account through probate.
Our digital assets and accounts comprise our digital estate. As discussed, the intangible digital estate is subject to very different rules than those that control our traditional tangible assets. Different problems and different safeguards are required to protect our interests and loved ones.
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 870 S. Main St., Lakeport, California. Fordham can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .