Estate Planning for Digital Assets


but we all know that your property
passes on your death and so when you die it is up to your estate to administer
your assets. This probate court case is about a yahoo! email account. As you
listen to the arguments you’ll realize that NOW is the time that you must
decide who will be allowed to access your digital assets. This is
just a newfangled form of property but it is property nonetheless. Tis family
found out that accessing digital assets is no simple matter when there is no
plan in place their brother died in a bicycle accident in 2006 with no will
they asked the court to simply grant access to his emails in their capacity
as the personal representatives of the estate of their late brother Johnny J
Mian but the court docket dragged on for more than a decade their brother was one
of 200 million Yahoo users the company provided headers and metadata but
refused to release the text content of the emails Yahoo’s interest is to not
administer the estates of two hundred and twenty five million users who are
all going to die to take this kind of property out the court would essentially
be causing all kinds of extraordinarily valuable property valuable to estates to
go plus the person in this case did not leave
consent for his family to get access to the emails like more than half the
people in Massachusetts who pass away he did not leave a trust or last will and
testament he was intestate meaning no Testament some 60 odd percent of
massachusetts residents died intestate so in those cases it passes to the
personal representatives and the personal representatives do with it what
what they’re duty-bound to do the family argued that data kept in a computer the
cloud or an email box is like any other property that a person might keep in a
box in their home you don’t know if he’ll open that box if you’re gonna find
u.s. savings bond or something more compromising it’s their duty nonetheless
your honor to find the box open it and decide what they’re supposed to do with
it but 50 years ago grandpa didn’t have
access to the cloud where he could hide stuff that he didn’t want his heirs or
executives to see I mean this is different you read the box under the bed
Your Honor it’s not different it’s just a different storage medium people today
store all kinds of things in the cloud and they use Yahoo Mail to send their
most personal communications to their spouses to their friends to their
lawyers to their doctors to their lovers to put everything in the cloud put your
banking information put your manuscripts maybe put your illicit emails with your
paramour if you don’t want them to be found just like grandpa when he had his
box under his bed don’t leave him there delete them when you get them if you
don’t want somebody to read them destruction is one way to control
digital assets but to protect and preserve digital assets you need a
written estate plan you can leave consent in your will you can leave
passwords behind you can leave instructions an inventory of your email
accounts photos data work product and all other digital assets is our first
step towards preparing estate planning documents that will protect your digital
assets the inventory makes you aware of the existence of your digital assets
the location of digital devices where the assets are stored and whether or not
the digital assets have financial value to get started let’s first think about
tangible personal property think about a picture I take with this instant camera
both the camera and the picture that it takes are not digital assets they are
tangible personal property that I own so both of these items of property are
already generally handled in a simple will with no special language or clauses
but if I take a photo with a phone which is a digital device that I own the photo
image may be stored on a computer that I own or in a cloud server that I do not
own if it is in the cloud I own the rights to the photo image but someone
else controls the digital device where it is kept consider these important
questions which digital assets do you want to save and pass on what access do
you need to give to the personal representative of your estate so that he
or she can distribute the digital assets and who will inherit and own your
digital assets estate planning documents that define digital assets coming up in
part 2

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